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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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