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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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