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Monday, May 10, 2004

Indiana Law - The future of gay marriage and civil unions nationally and in Indiana

The New York Times Magazine has an outstanding article this week by David J. Garrow, titled "Toward a More Perfect Union," that reviews the entire recent history of the gay right-to-marriage movement. Taking the long view, the article concludes:

Looking back 50 years to Brown v. Board of Education, most Americans have no difficulty in distinguishing the legacies of Thurgood Marshall, Martin Luther King Jr. and John F. Kennedy from those of the segregationist governors Orval Faubus, Ross Barnett and George Wallace. And 50 years from now, the odds are that Americans will have little difficulty in distinguishing the legacies of Evan Wolfson, Mary Bonauto and Gavin Newsom from those who oppose gay equality. As Kevin Cathcart asks, ''Which side of history do you want to be on?''
Contrasting with this is another article in yesterday's NY Times, about the Liberty Counsel, a conservative group that is using the courts to fight gay marriage:
"We used to be up against the government when fighting for gay rights, but more and more often we find ourselves also battling against Liberty Counsel and similar organizations," said Jon W. Davidson, a Los Angeles-based senior counsel for Lambda Legal, a legal organization fighting for gay rights. "It is clear in the case of same-sex marriage that the religious right has started using legal tactics normally associated with liberal and progressive groups like the A.C.L.U. or N.A.A.C.P."
This morning's Indiana Daily Insight has an interesting item under the "IN State Circles" heading:
(MON) Gay marriage is inevitable in the United States, says Brian Powell, the Allen D. and Polly S. Grimshaw Professor of Sociology at IU Bloomington, noting that demographic patterns clearly point to this. Powell's expertise includes the sociology of the family and issues regarding family structure. The current discussion and prospects for gay marriage and civil unions, he said, were unthinkable even just a few years ago. Last year Powell and his research team surveyed more than 700 people from around the country about gay marriage. The detailed survey revealed some demographic trends that bode well for supporters of same-sex marriage. The younger survey respondents were much more positive about gay and lesbian unions, Powell said. These young people may become more conservative as they age, thus changing their views of same-sex unions, but Powell said he doubts that this will happen. Young people are coming of age while these issues are being widely discussed, so the issues are less intimidating, he said. Another telling survey result involved the percentage of people who said they had a close friend or relative who was gay. Around 40% of respondents said this was the case, and Powell thinks this number would have been around 20% 10 years ago. He said this survey result is important because a person is more likely to support gay and lesbian unions if they have a close friend or relative who is gay or lesbian. "Not openly discussing these issues is much worse than having a candid discussion," he said. Powell's survey included questions that probed opinions about heterosexual and same-sex relationships and related benefits, such as hospital visitation rights and inheritance.
The question of gay marriage / same sex unions is currently pending before the Indiana Court of Appeals, via the case of Morrison v. Sadler. Earlier Indiana Law Blog entries may be found here: 2/27/04, 2/16/04, 2/4/04 (comprehensive), 1/13/04 (comprehensive), 1/8/04, and 12/14/03. Morrison v. Sadler was argued before Judges Friedlander, Kirsch and Barnes on 1/12/04. Many of the documents in the case may be found here.

Garrow's NY Times Magazine article explains why gay marriage advocates elected to file a case in Vermont in 1997 (that ultimately led to civil unions in that state):

Hawaii had demonstrated that a well-wrought lawsuit, strong constitutional arguments and a sympathetic court could produce a victory but were not necessarily sufficient to protect and preserve it. Vermont, by contrast, had several decisive advantages. Three years earlier, the state Supreme Court issued a pioneering opinion approving second-parent adoption for same-sex couples, thus evidencing sympathy for gay families. What's more, Vermont's state Constitution, unlike Hawaii's, was difficult to amend, creating a high hurdle for anyone eager to overturn a state constitutional judicial decision.
Indiana also has approved second-parent adoptions for same sex couples. See In The Matter of K.S.P and J.P. (3/23/04 IndCtApp), summarized here in the ILB, and Adoption of M.M.G.C. (3/18/03 IndCtApp). The March 2004 Court of Appeals opinion quotes extensively from Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993). The judges on the panel were Friedlander, Kirsch and Barnes.

Posted by Marcia Oddi on May 10, 2004 09:33 AM
Posted to Indiana Law