Last month I wrote about a terminally ill lesbian who wants her marriage to her wife recognized by the state of Indiana. The judge in the case, Judge Richard Young, issued a temporary restraining order that the state had to recognize their marriage for 28 days. Judge Young held a hearing last week on Friday (on the motion for preliminary injunction), and the judge will have to decide whether or not to continue the order by tomorrow because the emergency order expires on May 8. He could also rule on the actual motion for preliminary injunction in the marriage equality case presented. We'll have to wait and see.
Amy Sandler and Niki Quasney were married in Massachusettes. Quasney was diagnosed with (stage four) ovarian cancer in 2009.
During Friday's hearings, testimony revealed that Niki Quasney's cancer "is back, and has grown worse." Niki and Amy decided against more chemotherapy, as it will not prolong her life, and it would have numerous side effects. "I am doing everything I can to protect Amy and our two children from discrimination — my children shouldn't have to grow up being treated as inferior to children from other families," Quasney said. "We are not asking for special privileges. We should have the same freedoms as other married Indiana couples."
Attorney Jordan Heinz, who attended the hearing with his Kirkland and Ellis colleague Dmitriy Tishyevich on behalf of Niki and Amy, told the court that "little has changed since the Temporary Restraining Order (TRO) three weeks and one day ago." Nothing new has been presented in the last three weeks on the state's behalf. And yet, creating legal documents for the same rights married couples have is not only very expensive, he said, but "proof they are being harmed."
Indiana Solicitor General Thomas Fisher set the tone for the state's defense by saying, "We have to set aside our human reactions to what is happening, and focus on the law. It's never been about exclusion (of gay and lesbian couples), it's about definition."
Chief Judge Richard L. Young, who will be presiding over all five same-sex marriage cases in Indiana, asked Fisher, "Is marriage a fundamental right?" Fisher responded, "Within limits — it does not include same-sex couples or polygamous marriages." For now though, in Fisher's words, gay marriage is "where the action is."
Fisher went on to say that married couples create babies, and the state has to protect them. Judge Young wanted to know about couples who adopt, and if it's the state's job to protect them as well. He also went on to point out that 60 year olds don't have to worry about having children, to which Fisher replied, "they model the behavior for fertile couples."
"The state doesn't care if you are a same-sex couple. They care if you can produce children," Fisher said.
Fisher went on to talk about the "slippery slope" that would be caused by allowing same-sex couples to marry, leading the judge to ask, "What about states where same-sex marriage is already permitted? Has their institute of marriage already disintegrated?"
"It's too soon to tell," Fisher replied.
According to attorney Heinz, it's not too soon to tell if damage has been done by the state to Niki and Amy. Injuries to Niki include her claim that Indiana's government encourages discrimination. Niki continues to travel to Chicago for treatment, "for fear she won't be treated as a married couple in Munster." This fear stems partly from the fact a clerk in Munster denied their marriage certificate.
9:43 AM PT: The judge, Judge Richard Young has granted the plaintiffs motions for preliminary injunction in this case. It is a narrow ruling, and Indiana will have to recognize this couples out of state marriage only (not other same-sex marriages).