Love v. Pence, 2014 U.S. Dist. LEXIS 86118

Plaintiffs (two unmarried same-sex couples and two same-sex couples married out-of-state) challenged Indiana Code § 31-11-1-1 (Indiana Defense of Marriage Act), alleging multiple federal constitutional violations and seeking injunctions requiring Indiana to issue and recognize same-sex marriages.
Plaintiffs named Governor Mike Pence as the sole defendant, alleging he implements and enforces the challenged statutes as Indiana’s chief executive.
Plaintiffs sought relief ordering the State to issue marriage licenses to same-sex couples, to recognize out-of-state same-sex marriages, and to cease discrimination in issuing licenses.
Governor moved to dismiss under Rule 12(b)(1), arguing lack of Article III standing because the alleged injuries are neither fairly traceable to him nor redressable by him.
The court considered the Governor’s actual statutory and constitutional powers (including cited executive orders) and found no demonstrated authority enabling him to enforce or nullify the marriage statute or to direct county clerks on these matters.
Court denied plaintiffs’ requests for discovery and leave to amend to add proper defendants, finding discovery would not change the Governor’s lack of relevant enforcement authority.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Plaintiffs have Article III standing to sue the Governor	Governor has managerial authority over executive branch and can be ordered to stop enforcing the statute or direct clerks	Governor lacks specific statutory authority to enforce or direct enforcement of the marriage law; general duty to enforce laws insufficient	No standing: injuries not fairly traceable to Governor and not redressable by him — dismissal granted
Whether Governor’s past executive orders support suit against him	Executive orders show precedent of Governor acting by executive order concerning state matters	Past orders invoked specific statutory powers not analogous to directing marriage officials	Court finds cited orders inapposite; no authority shown to order clerks on marriage licensing
Whether discovery should be permitted to establish Governor’s authority	Discovery could reveal executive control over agencies or clerks relevant to enforcement	Governor’s powers are defined by state constitution/statute; discovery would not alter legal authority	Discovery denied
Whether plaintiffs may amend to add proper defendants	Plaintiffs seek leave to add defendants the court deems proper	Court states it will not advise plaintiffs whom to sue; amendment not granted here	Leave to amend denied in this context

Scanlan v. Eisenberg, 669 F.3d 838 (7th Cir. 2012) (standing standard on Rule 12(b)(1) review).
Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440 (7th Cir. 2009) (court may consider evidence beyond the complaint on jurisdictional challenges).
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact, causation, and redressability).
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (plaintiff may not sue a state official who lacks power to enforce the challenged statute).
Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770 (7th Cir. 1999) (governor was not a proper defendant where he had no enforcement role or power to nullify legislation).
1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108 (3d Cir. 1993) (general authority to enforce state law does not make statewide officials proper defendants).
Snoeck v. Brussa, 153 F.3d 984 (9th Cir. 1998) (general supervisory power over enforcers does not subject an official to suit).
Shell Oil Co. v. Noel, 608 F.2d 208 (1st Cir. 1979) (governor’s general duty to enforce law insufficient to make him a proper defendant).
Deida v. City of Milwaukee, 192 F. Supp. 2d 899 (E.D. Wis. 2002) (dismissal of statewide official where official had no power to enforce challenged statute).