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.
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.
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?”
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.
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.”•