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Friday, January 21, 2005

Ind. Decisions - More on Court of Appeals ruling yesterday on same-sex marriage

Many stories today from around the state on the Court of Appeals ruling yesterday in Ruth Morrison, et al v. Doris Ann Sadler, et al (1/20/05 IndCtApp)[check here for initial entry]. Here are some quotes and links.

"Indiana Court of Appeals supports gay-marriage ban" from the Louisville Courier Journal. Lesley Stedman Weidenbener writes:

In the case decided yesterday, the ICLU argued that the Equal Privileges and Immunities Clause of the Indiana Constitution prohibits lawmakers from limiting marriage and its benefits to opposite-sex couples only. The clause prohibits the General Assembly from giving one class of citizens a benefit it does not offer equally to all citizens.

Indiana Supreme Court precedent requires that laws treating citizens unequally are constitutional only if they are reasonably related to a natural quality that distinguishes the classes of people. In this case, the innate characteristic of same-sex couples is that they cannot naturally produce offspring, the opinion said.

That's important, the judges concluded, because "opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment." "Recognition of same-sex marriage would not further this interest," the decision said.

[Ken Falk, the ICLU attorney who argued the case] disagreed with that reasoning. "The problem with that is that marriage is about much more than procreation," he said. "There are some people who can't have children who are validly married."

The court yesterday acknowledged that same-sex couples are frequently raising children, thanks to adoption and reproductive technologies. However, it said the planning and financial resources necessary for those options means those couples already are heavily invested in the decision to have children and are thus already more likely to provide a stable environment "with or without the `protections' of marriage."

"By contrast, procreation by `natural' reproduction may occur without any thought for the future," the court said. "The state ... may legitimately create the institution of opposite-sex marriage and all the benefits accruing to it, in order to encourage male-female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from `casual' intercourse."

Judge Michael Barnes wrote the opinion, with judges James Kirsch and Ezra Friedlander concurring. Friedlander wrote a separate opinion in which he said he was "somewhat troubled" by the emphasis on natural procreation as the distinguishing characteristic. Under that rationale, he wrote, "the state presumably could also prohibit sterile individuals or women past their child-bearing years from marrying." Yet, he said, the legislature has banned only same-sex marriage. "Such laser-like aim suggests to me," Friedlander said, "that the real motivation behind (the law) might be discriminatory."

"State appeals court upholds ban on same-sex marriage" is the headline to this story by Jennifer Whitson in today's Evansville Courier&Press. A quote:
In the 2004 session, same-sex marriage became a hot issue when lawmakers tried to take the it out of the courts by adding the same-sex marriage ban to Indiana's Constitution. The amendment passed in the Senate, but House Democratic leaders refused to let it come to a vote, prompting Republicans to walk off the floor.

Many House Republican candidates used the topic in their election campaigns in November and won back the majority.

House Democratic Leader B. Patrick Bauer, D-South Bend, said the court's ruling affirmed his argument that a constitutional amendment wasn't necessary. "Today the House Democrats were vindicated," he said. "(The constitution) is a precious document that should be very rarely amended."

But Republicans said another court could reverse this ruling or new judges might have different ideas. They said they will continue to pursue an amendment to Indiana's Constitution.

"Today's decision makes traditional marriage safe again for the time being," said House Speaker Brian Bosma, R-Indianapolis. "But it's critical to have a constitutional amendment to be certain both that the current judiciary does not change their mind on this decision and also to protect it from future decisions as well based on other arguments."

"Judges dismiss same-sex marriage: Appellate court rules against 3 gay couples" is the headline to this story by Niki Kelly in today's Fort Wayne Journal Gazette. Some quotes:
“The court took a very thoughtful and scholarly approach to the question. I just think we have a basic disagreement on the outcome,” said Ken Falk, attorney for the Indiana Civil Liberties Union. He said his clients were disappointed.

“This, from their perspective, is very hard to figure out. For them this is a human thing,” Falk said. “They love each other and want the responsibility of being married. They have a hard time understanding why they can’t.”

The ICLU sued in 2002 on behalf of three long-term central Indiana gay couples. A Marion County judge dismissed the case, and it was appealed to the Indiana Court of Appeals, which had it under consideration for more than a year.

The plaintiffs claimed the state law defining marriage as between a man and a woman violated the equal privileges clause of the Indiana Constitution, which provides that the General Assembly cannot grant unequal privileges to different classes of citizens. Specifically, the couples noted different treatment in the areas of protection of spousal communications, making of health care decisions and inheritance rights.

The court ruled the law does not run afoul of the constitution because “opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment. “Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it.”

The Fort Wayne paper also has an editorial titled "An unsurprising disappointment." Some quotes:
The ICLU has not decided to appeal to the state Supreme Court. It should, if only to question the appeals court’s narrow reasoning in deciding that the ban on same-sex marriage does not violate the state constitution’s equal-protection clause. (That clause prohibits the legislature from granting any class of citizens privileges denied to another class.)

In its 3-0 ruling, the appeals court declared the law does not violate the state constitution’s equal-protection clause because the purpose of the Defense of Marriage Act is to encourage “responsible procreation,” something same-sex couples cannot do biologically. The opinion seems to go to great lengths to justify this interpretation even though many couples who cannot – or choose not to – procreate do in fact get married.

In a concurring opinion, Justice Ezra Friedlander seems to question such dissonance, writing, “I must admit that I am somewhat troubled by this reasoning. Pursuant to this rationale, the State presumably could also prohibit sterile individuals or women past their child-bearing years from marrying. In fact, I would assume the State may place any restrictions on the right to marry that do not negatively impact the State’s interest in encouraging fertile, opposite-sex couples to marry.”

Yet Friedlander agreed with his colleagues. They determined that a 1994 state Supreme Court ruling places a very high burden of proof in front of anyone challenging a state law on the basis of equal protection.

The appellate court says the legislature should decide the matter of same-sex marriage. The three-judge panel, ruling on precedent rather than morality, wrote the “Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document.”

Jim Stinson's story in the Gary Post-Tribune begins:
The Indiana Court of Appeals upheld the state’s ban on gay marriage on Thursday, but Republicans are still promising a place for the ban in the state constitution.

State Speaker of the House Brian Bosma, R-Indianapolis, said a challenge at the Indiana Supreme Court or in a federal court could change things. “It’s been made very clear by the advocates of same-sex marriage that the battle’s not done,” said Bosma.

Not by a long shot, according to Northwest Indiana gay and lesbian activists.

"SAME-SEX MARRIAGE: Legislators say ruling vindicates their actions, others are disappointed" is the headline to the Munster Times story by Brendan O'Shaughnessy and Allison Fashek. The lead:
The Indiana Court of Appeals on Thursday upheld the state law banning gay marriage, setting off a scramble by political opponents to interpret the results on a controversial issue.

House Democrats said the court, which rejected a challenge by three homosexual couples to a 1997 law defining marriage as between a man and woman, vindicated their actions last year in blocking a proposed constitutional amendment. They said then that the current law was sufficient and the amendment push was a political ploy in an election year.

Republicans, whose walkout last year brought House business to a halt, said the ruling backs up their stand for traditional marriage and the Legislature's right to decide the matter.

Finally, Tim Evans wrote today's front page but below-the-fold story in the Indianapolis Star, headlined "Same-sex marriage ban upheld: Indiana court cites the inability of gays to procreate naturally as justification for law." Some quotes:
An Indiana Court of Appeals decision upholding the state law banning same-sex marriage came down to the issue of natural reproduction -- not morality, religious tradition or gay rights.

The court ruled Thursday that the ability of heterosexual couples to procreate naturally is distinction enough to justify the law.

"The Indiana Constitution does not require governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution," Judge Michael P. Barnes noted in the unanimous decision. * * *

Thursday's ruling is not expected to end the legal and political debate over same-sex marriage. The couples could appeal the decision, and legislators are moving forward with a proposed constitutional amendment that would ban same-sex marriage and could render any future court challenges moot.

"This is a good ruling for the state," said Attorney General Steve Carter. "It recognizes the unique role that traditional marriage plays in our society, and affirms the General Assembly's ability to define marriage as between one man and one woman."

Gay marriage advocates called the decision a disappointment. "We thought we had demonstrated why same-sex couples that wanted to live in a committed and loving relationship should constitutionally be treated the same as opposite-sex couples," said Kenneth Falk, legal director for the Indiana Civil Liberties Union.

The Star also has this story today by political writer Mary Beth Schneider that begins:
Republican lawmakers applauded a court decision Thursday upholding the state law prohibiting same-sex marriage, but said the ruling doesn't change their determination to seek a constitutional amendment banning same-sex marriage.

"The battle is certainly not over," said House Speaker Brian Bosma, R-Indianapolis. "The only way to settle it for certain is by changing the state constitution."

The Indiana Supreme Court could reverse the appellate decision, he said, or another case could arise that results in a different outcome.

"It's critical to have a constitutional amendment to be certain both that the current judiciary does not change their mind on this decision and also to protect (marriage) from future decisions as well," Bosma said.

Posted by Marcia Oddi on January 21, 2005 09:15 PM
Posted to Ind. App.Ct. Decisions