Love v. Pence, 47 F. Supp. 3d 805

Background

Plaintiffs (two unmarried same-sex couples and two same-sex couples married elsewhere) challenged Indiana Code § 31-11-1-1, which prohibits same-sex marriages and refuses recognition of out-of-state same-sex marriages.
Plaintiffs sued Governor Mike Pence in his official capacity seeking declaratory and injunctive relief under federal constitutional provisions (Due Process, Equal Protection, First Amendment, Full Faith and Credit, Supremacy, right to travel, Establishment).
The district court dismissed the complaint for lack of subject-matter jurisdiction in an Entry dated June 25, 2014, largely based on the Governor’s representation that he had no authority to enforce the statute.
After that dismissal, the Governor’s general counsel issued memoranda (June 26 and July 7, 2014) instructing executive branch agencies on compliance, including reversing steps taken to comply with the district court’s June 25 order after a stay.
Plaintiffs moved under Rule 59(e) for reconsideration based on those newly issued memoranda, arguing they show the Governor does direct executive agencies and is capable of enforcing the statute and providing or withholding recognition of marriages.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the post-Entry memoranda constitute newly discovered evidence warranting reconsideration	Memoranda issued after the Entry show the Governor intervenes and directs executive agencies, contradicting prior representations	Motion is an improper rehash of arguments already rejected; no grounds for Rule 59(e) relief	Reconsideration warranted: memoranda were new and undercut a key factual premise of the dismissal
Whether the Governor can enforce §31-11-1-1 / is a proper defendant under Ex parte Young	Governor’s memoranda show he directs executive agencies that recognize or register marriages, so he can enforce the statute and be enjoined	Prior representation: Governor lacks authority to enforce the statute; general duty to enforce laws is insufficient	Governor is a proper defendant as to recognition of out‑of‑state marriages; Ex parte Young applies because memoranda show a sufficiently intimate connection
Whether the Governor can provide the unmarried plaintiffs the right to marry in Indiana (authority over county clerks)	Plaintiffs seek ability to marry in Indiana; Governor can command statewide executive action	Governor lacks statutory authority to control county clerks, who serve county courts	Governor cannot redress unmarried plaintiffs’ harms; claims seeking the right to marry in Indiana remain dismissed
Whether Eleventh Amendment bars suit against the Governor	Plaintiffs invoke Ex parte Young exception to permit suit to enjoin prospective state action violating federal law	State immunity argument: Eleventh Amendment bars suit absent consent	Ex parte Young exception applies here for enforcement/recognition claims because of governor’s direct instructions to executive agencies

Key Cases Cited

Ex parte Young, 209 U.S. 123 (1908) (establishes that a suit against a state officer seeking prospective injunctive relief to stop ongoing violations of federal law is not barred by the Eleventh Amendment)
Ameritech Corp. v. McCann, 297 F.3d 582 (7th Cir. 2002) (discusses use of Ex parte Young to enjoin prospective state action)
Dean Foods Co. v. Brancel, 187 F.3d 609 (7th Cir. 1999) (Ex parte Young principles discussed in Seventh Circuit context)
Shell Oil Co. v. Noel, 608 F.2d 208 (1st Cir. 1979) (connection requirement for Ex parte Young examined)
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (governor’s direction of state agencies weighed in finding governor a proper defendant in same-sex marriage recognition dispute)
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (affirming district court judgment on marriage equality issues; court noted but did not resolve governor-party question in same terms)
Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014) (found governor to be a proper defendant in a same-sex marriage recognition challenge)