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Critics: Indiana leads from wrong side in same-sex marriage cases

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Hundreds of supporters of same-sex marriage filled the east steps of the Indiana Statehouse on March 27, marking the conclusion of two days of high-profile arguments on the topic before the Supreme Court of the United States.

Motorist after motorist honked in solidarity, energizing waves of cheers from an expectant crowd that sensed a sea change. Public-opinion polls for the first time show a solid majority supports same-sex marriage, said Chris Paulsen, president of Indiana Equality Action.

“This is a great time in our history, as our country moves quickly away from discrimination and toward equality,” Paulsen told supporters on the Capitol steps.
 

marriagerally-9-1col.jpg Supporters of same-sex marriage filled the east steps of the Statehouse on March 27, including attorney Justin Gifford, above, who holds a sign proclaiming “Marriage is a constitutional right.” (IL Photo/ Eric Learned)

But Paulsen said Indiana is headed in the wrong direction. She called out Attorney General Greg Zoeller for taking a lead role in advocating against same-sex marriage: Indiana wrote or co-wrote amicus briefs signed by other states taking that position in the cases the high court heard.

“We need to turn that tide,” Paulsen said. “We do not want to be the state moving backward while everyone else moves forward.”

But Zoeller said in an interview he was duty-bound by the requirements of his office. “I still feel like it’s my obligation to defend the policy choices (of the Legislature) and the authority of the state.

“There are so many different voices in Indiana, and I can’t take a poll to see what I represent,” he said.

Indiana’s out-front leadership in support of traditional marriage had more to do with expertise gained in defending challenges to its marriage statutes than political preference, Zoeller said. “It wasn’t like we were looking for prominence. I’ve never gone out and spoken as a leader on the public policy side,” he explained.
 

zoeller-greg.jpg Zoeller

Indiana wrote the amicus brief joined by 16 other states in U.S. v. Windsor, 12-307, a challenge to the federal Defense of Marriage Act, and co-authored with state attorneys from Virginia the brief in Hollingsworth v. Perry, 12-144, an appeal of a ruling striking down California’s Proposition 8 that banned same-sex marriage.

Both those cases were left undefended by the attorneys general responsible, but whether

those who took up the fight have standing was a question raised by the justices.

Zoeller said he worried about U.S. Attorney General Eric Holder arguing against DOMA, which President Barack Obama opposes, in the Windsor case.

Rather than defending statutes on merit, or opting not to, Zoeller wondered about the perception created when the Office of U.S. Attorney General took the unusual step of arguing against an act of Congress in Windsor. “Are we creating a new public view that the attorney general should use his own judgment?”
 

 

marriagerally-1-1col.jpg A demonstrator holds a sign promoting marriage equality during a rally in Indianapolis on March 27. (IL Photo/Eric Learned)

Indiana also took a lead in the cases in large part because Zoeller said Solicitor General Thomas Fisher has gained a reputation as a leader among the National Association of Attorneys General and his services are in demand.

According to information provided by the AG’s office, Indiana has authored or co-authored 22 federal court amicus briefs that other states joined since Zoeller took office in 2009. Indiana has joined 82 briefs authored by other states.

Fisher was at the U.S. Supreme Court for the Hollingsworth arguments on March 26. “On balance, my sense is that a proposition that adheres to traditional marriage seemed to have a pretty good day,” Fisher said after arguments concluded. “I don’t know that our side will win, but it seems unlikely we will lose based on the arguments.”

Zoeller said the arguments posited in the cases that marriage is a constitutional right contravene historical practice. If the justices agree, “It’ll be the first time we’ve ever heard this.”

Instead, marriage has always been treated as a licensing issue in Indiana and other states – Zoeller compared the process to that of getting a driver’s license – in which states have had the authority to set policies and restrictions.

Indiana Code 31-11-1-1 adopted in 1997 defines marriage as between a man and a woman. “A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized,” the statute says.

Lifelong Hoosiers Paul Fischer and Dannie Chandler were joined together in a nonofficial union ceremony more than 20 years ago, and they were officially married in California in 2008 before Proposition 8 passed. Their marriage carries no legal weight in Indiana, though.

Chandler said he hopes it’s time the justices make a clear pronouncement and throw out barriers to same-sex marriage nationwide. “I don’t see how they can make it for one state and not make it for all states,” he said.

The Supreme Court did make a federal statement on marriage in 1967, invalidating laws on the books against interracial marriage in Virginia and 15 other states in the landmark Loving v. Virginia ruling. Indiana’s law barring interracial marriage had been repealed two years earlier.
 

Drobac-Jennifer.jpgDrobac

Jennifer Drobac, a professor at Indiana University Robert H. McKinney School of Law in Indianapolis, said a Supreme Court decision impacting same-sex marriage nationwide is possible, but unlikely. She believes the Proposition 8 case might be decided based on standing, but in the DOMA case, “I think there are enough votes there to decide the case on the merits.”

She envisions nullification of DOMA but justices leaving same-sex marriage up to the states. “It still causes huge problems in our nation,” Drobac said, because Indiana and other states with laws barring same-sex marriage could continue to disavow unions legitimately performed in another state.

“We live in a global society, and when we do not recognize the enactment and judgments of sister states in our republic, it causes huge confusion and disruptions,” she said.

Teaching family law or contract law classes at McKinney, Drobac said students have been compelled by the arguments, and opposition to same-sex marriage has diminished in recent years. “If you are truly conservative or libertarian and you believe in the freedom of contract, you have to believe that homosexual marriage should be permitted, and who is the state to interfere in this contract?”

Indiana’s stance against same-sex marriage might have long-term consequences, Drobac worries.

“It’s embarrassing what Indiana has done, and shameful, and I think in 50 years we’ll look back and say, ‘Ouch,’ but we’re not there yet,” she said. “These are century cases. … These are cases that will really define whether or not we take our Bill of Rights seriously, and whether we’re truly the land of liberty and freedom.”•

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  • jacobin leveller social engineering
    The misnamed gay marriage advocates are jacobin levellers. They seek to eliminate the distinction of the institution of marriage as such by equalizing it-- levelling it-- by raising up to its level homosexual partnerships. And yet society will suffer for this radical equalitarian agenda. The sans-culottes would have loved this too. Why now after thousands of years of Indo-European and nearly universal human culture does "marriage" need to be redifined? No good answer other than the vacuous shibboleth "equality" oft repeated yet again as another excuse for needless social engineering by self appointed experts in "law."

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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