UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

MICHELLE BOWLING, et al., )
)
Plaintiffs, )
)
v. ) Case No. 1:14-CV-405-RLY-TAB
)
MICHAEL PENCE, in his official capacity as )
Governor of the State of Indiana, et al., )
)
Defendants. )

DEFENDANTS ANTICIPATORY MOTION
FOR STAY OF JUDGMENT PENDING APPEAL

In anticipation of final judgment against one or more of them, and pursuant to Federal
Rule of Civil Procedure 62(c), Defendants Michael Pence, Greg Zoeller, Michael Alley, and
Anita Samuel respectfully move this Court to stay the enforcement of all judgments, injunctions,
and declaratory or other relief contemporaneously with the issuance of this Courts final
judgment, pending appeal to the United States Court of Appeals for the Seventh Circuit.
1
A stay
in this case is warranted because on J une 27, 2014, the Seventh Circuit stayed this Courts final
judgment, including all injunctive and declaratory relief granted by this Court, in the related
cases Baskin v. Bogan, No. 1:14-cv-355-RLY-TAB, Fujii v. Governor, No. 1:14-cv-404-RLY-
TAB, and Lee v. Pence, No. 1:14-cv-406-RLY-MJ D. See Baskin, et al. v. Bogan, et al., Nos. 14-
2386, 14-2387, 14-2388 (7th Cir. J une 27, 2014) (order granting stay of all relief and ceasing
recognition of all same-sex marriages in Indiana pending appeal).
On Tuesday J uly 1, 2014, the Seventh Circuit lifted the stay as to relief granted
specifically to Plaintiffs Quasney and Sandler, but on J uly 2 it denied a similar request from the

1
As they have in the related cases Baskin v. Bogan, No. 1:14-cv-355-RLY-TAB, Fujii v. Pence, No. 1:14-cv-404-
RLY-TAB, and Lee v. Pence, No. 1:14-cv-406-RLY-MJ D, Defendants-Appellants will file their Notice of Appeal as
soon as possible following this Courts issuance of its final judgment.
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Plaintiffs in Lee. Baskin, No. 14-2386 (7th Cir. J uly 1, 2014) (order lifting stay as to Quasney
and Sandler); Lee v. Abbott, No. 14-2388 (7th Cir. J uly 2, 2014) (order denying Plaintiffs-
Appellees motion to lift stay). The stay and follow-on orders in Baskin and Lee demonstrate
that, absent truly extraordinary circumstances, unless and until the United States Supreme Court
determines that traditional marriage definitions such as Indianas are unconstitutional, it would
be premature to require Indiana and its state and local officials to act on the Courts order
declaring that definition unconstitutional.
Permitting enforcement of the final judgment in this case but not the others would create
unnecessary confusion and inconsistency among the four remaining same-sex marriage cases
coming out of this Court. Accordingly, for purposes of this motion, the State will dispense with
arguing according to the customary Rule 62(c) standard for a Stay pending appeal (which the
Seventh Circuit has already deemed to have been met) and set forth why Plaintiffs in this case
present no extraordinary circumstances justifying immediate relief.
As a starting point, it is worth noting that, unlike Plaintiffs Quasney and Sandler,
Plaintiffs Bowling, Bowling, and Bruner have never moved this court for a temporary restraining
order or a preliminary injunction. In other words, they have never claimed to assert the sorts of
injuries that justify immediate relief, and there is no reason to conclude that the injuries they
describe in their complaint and summary judgment briefs have become sufficiently emergent to
justify immediate relief now.
I. Shannon and Michelle Bowling Claim No Extraordinary Injuries Requiring
Immediate Relief

Plaintiffs Shannon and Michelle Bowling have not pled or argued that they are incurring
or will incur any extraordinary injuries as a result of Indianas traditional marriage definition that
necessitate immediate relief.
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First, the Bowlings brought this case because they wish to file their taxes jointly. See M.
Bowling Decl. 17-23 [Bowling Docket No. 21-1]. The Bowlings, however, do not face any
immediate tax deadlines where they might take advantage of the ability to file jointly.
Conventional wisdom holds that the U.S. Supreme Court will decide the same-sex marriage issue
by the close of next October term (see Erik Eckholm, Wave of Appeals Expected to Turn the Tide
on Same-Sex Marriage Bans, N.Y. Times (March 22, 2014), http://www.nytimes.com/2014/
03/23/us/appeals-expected-to-block-more-marriage-bans-on-fast-track-to-justices.html), so even
if the Bowlings are unable to file joint Indiana tax returns by April 2015, a decision in their favor
from the Supreme Court in the near future would enable them to amend their returns for the 2014
tax year. See Ind. Dept of Revenue, FAQs: When Do I File an Amended (Corrected) Return?
http://www.in.gov/dor/4710.htm (last visited J uly 7, 2014) (directing Hoosier taxpayers to
submit an IT-40X to amend previously-filed tax returns). Accordingly, it is hard to see how the
Bowlings interest in filing joint tax returns amounts to an extraordinary injury justifying
immediate relief.
The Seventh Circuit, by virtue of its stay of this Courts judgment in the combined
Baskin, Fujii, and Lee cases, where several couples argued for the right to file joint tax returns,
has implicitly concluded that the States interests in orderly resolution of the same-sex marriage
issue as it pertains to administration of its tax laws outweighs plaintiffs interests in the ability to
file joint tax returns immediately. See Baskin, Mem. in Supp. of Pls. Mot. for Summ. J . at 10
(arguing for right to file joint tax returns) [Baskin Docket No. 39]; Fujii, Pls. Mem. in Supp. of
Mot. for Summ. J . at 6 (same) [Fujii Docket No. 34]. The Bowlings congruent interest in filing
joint tax returns, particularly unaccompanied by any demonstration of financial tax benefit,
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presents no stronger case for immediate relief than the married plaintiffs in the consolidated
Baskin, Fujii, and Lee cases.
Next, the Bowlings claim to be injured because Plaintiff Shannon Bowling is a state
employee and wishes to claim health and other insurance benefits for Michelle Bowling and her
children as her spouse and family. M. Bowling Decl. 9-16 [Bowling Docket No. 21-1]; First
Am. Compl. 64 [Bowling Docket No. 1]. Again, however, the Seventh Circuit has already
implicitly determined that claims for spousal and family benefits are insufficiently weighty to
justify immediate relief pending appeal of the same-sex marriage issue. See, Baskin et al., Nos.
14-2386, 14-2387, 14-2388, (7th Cir. J une 27, 2014) (staying relief that would otherwise have
allowed same-sex spouses to access their spouses public and private employer-provided
insurance); Lee, No. 14-2388 (7th Cir. J uly 2, 2014) (refusing to lift stay as applied to the Lee
plaintiffs, who sought access to Indiana Public Retirement System benefits, including future
police and fire department death benefits).
What is more, if the State were to pay such benefits now, only to prevail later, it would be
unclear whether it would be entitled to recover the erroneously paid sums from the Bowlings.
There is nothing emergent about a claim for employee benefits that can justify the confusion and
potential exposure immediate enforcement would prompt. Nor can such a claim justify creating
inconsistency in terms of judgment enforceability between this case and all other same-sex
marriage cases (excepting plaintiffs Quasney and Sandler).
II. Plaintiff Linda Bruner Does Not Stand to Incur Extraordinary Harm
Justifying Immediate Relief

Plaintiff Linda Bruner seeks dissolution of her same-sex marriage and division of marital
property under Ind. Code 31-15-2 et. seq. and Ind. Code 31-15-7-4. Bruner Decl. 10
[Bowling Docket No. 21-3]; First Am. Compl. 55 [Bowling Docket No. 1]. Such a weighty
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5

judicial proceeding should not be resolved prior to appellate affirmation that Plaintiff Bruner has
a valid claim to her spouses property under Indiana law. See Ind. Code 31-15-7-4 (permitting
difficult-to-reverse actions during divorce proceedings, such as dividing property owned by
either spouse prior to marriage and ordering the sale of property and division of proceeds).
Bruner has no immediate need for a divorce in Indiana courts because Indiana has never
recognized her marriage. See Defs. Summ J . Mem. at 45-47 [Bowling Docket No. 26].
Further, even without access to a dissolution claim, Indiana courts offer adequate
remedies for Bruners physical protection and desired property division. Despite Bruners
allegations that she cannot access Indiana courts for assistance, she sought and obtained a
protective order against her spouse in Indiana courts. Bruner Decl. 8 [Bowling Docket No. 21-
3]; First Am. Compl. 71-75 [Bowling Docket No. 1]. Bruner may also invoke the equitable
powers of Indiana courts. While same-sex couples may not be able to divide their property by
way of formal divorce decree, Indiana courts may nonetheless equitably divide property
acquired during the relationship if one of the parities requests such action. In re Marriage of
Thomas, 794 N.E.2d 500, 503-04 (Ind. Ct. App. 2003) (observing that Indiana Code Section 32-
17-4-1 permits parties who have never been married to file a partition action as to real
property); accord Turner v. Freed, 792 N.E.2d 947, 950 (Ind. Ct. App. 2003) ([A] party who
cohabitates with another person without subsequent marriage is entitled to relief upon . . . a
viable equitable theory such as an implied contract or unjust enrichment.); Rance v. Rance, 587
N.E.2d 150, 152 (Ind. Ct. App. 1992) (holding that couple could petition trial court for an
equitable distribution of assets even where the trial court had held that it lacked subject matter
jurisdiction to grant their petition for marital dissolution because their marriage was void under
Indiana law).
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Because Indiana courts offer adequate means for protection and property division, Bruner
will suffer no extraordinary harm justifying immediate relief, so this Court should stay any
judgment that would require Indiana courts to expend time and resources dissolving marriages
that have never existed under Indiana law.
CONCLUSION
For the foregoing reasons, the State respectfully requests that this Court stay enforcement
of the J udgment, pending appeal to the Seventh Circuit Court of Appeals.

Respectfully submitted,

GREGORY F. ZOELLER
Attorney General of Indiana

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General
Office of the Attorney General
302 W. Washington St., IGC-S, 5
th
Floor
Indianapolis, Indiana 46204-2770
Phone: (317) 232-6255
Fax: (317) 232-7979
Email: Tom.Fisher@atg.in.gov

Counsel for Defendants


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CERTIFICATE OF SERVICE

I hereby certify that on J uly 14, 2014, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which sent notification of such filing to the following:

Karen Celestino-Horseman
AUSTIN & J ONES, P.C.
Karen@kchorseman.com

Mark W. Sniderman
SNIDERMAN NGUYEN, LLP
mark@snlawyers.com

William R. Groth
FILLENWARTH DENNERLINE GROTH &
TOWE, LLP
wgroth@fdgtlaborlaw.com

Kathleen M. Sweeney
SWEENEY LAW GROUP, LLC
ksween@gmail.com




s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General



Office of the Attorney General
Indiana Government Center South 5th Floor
302 W. Washington St.
Indianapolis, IN 46204-2770
Phone: (317) 232-6255
Fax: (317) 232-7979
Email: Tom.Fisher@atg.in.gov

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