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Thursday, August 23, 2012

Ind. Gov't. - Who should decide Indiana's position on national legal issues? Who should know?

That was the title I used to a July 27, 2009 entry, and I am recycling it. The point was that the Attorney General had initiated in some cases, and in many other cases joined, national lawsuits on behalf of the State of Indiana, with little or no publicity here in Indiana.

The entry began by quoting a number of articles discussing Indiana's participation in, or initiation of, an amicus brief filed in the SCOTUS or one of the federal circuit courts. But these articles were all from other states.

Early this month the ILB saw another such article, this one in the Huffington Post ("15 States Ask the Supreme Court to Review DOMA"), dated Aug. 9, 2012. So I've been waiting to see if there would be an announcement from the Attorney General's office or a local story on Indiana's taking the lead in this SCOTUS amicus brief, but not so far ...

In this brief, authored on behalf of the State of Indiana by Gregory F. Zoeller, Attorney General, and Thomas M. Fisher, Solicitor General and Counsel of Record, and signed on to by 14 other states, the amici defend the federal Defense of Marriage Act (DOMA), arguing that "Marriage serves interests inextricably linked to the procreative nature of opposite-sex relationships." From the opening re the "Interest of the Amici States":

Congress and the overwhelming majority of States — forty-two in all — define marriage as the union of one man and one woman, consistent with the historical definition of marriage. In a decision that casts doubt on all traditional definitions of marriage and confuses longstanding equal protection principles, the court below rejected Congress’s definition of marriage. The amici States have two interests at stake: (1) protecting their power to define marriage in the traditional manner,and (2) clarifying equal protection principles that apply to marriage laws.
From the "Summary of the Argument":
The Court’s decision upholding Minnesota’s traditional marriage law in Baker v. Nelson, 409 U.S. 810 (1972), has long protected both state and federal laws defining marriage from federal constitutional attack. Although purporting to respect Baker, the decision below deftly avoids its obvious implications by creating a novel standard of review—dubbed “closer than usual” scrutiny— that invites constitutional challenges to marriage laws of all stripes. The court nominally predicated such heightened scrutiny—which runs contrary to this Court’s repeated refusal to divide rational basis review into multiple standards—on federalism concerns, but its actual analysis implies similar skepticism of state marriage laws. The reasoning and result deviate so far from this Court’s longstanding precedents and injects such confusion into equal protection doctrine that it cannot be ignored.

As Congress and forty-two States recognize, the different procreative capacities of same-sex and opposite-sex couples support a constitutionally legitimate distinction for defining marriage and affording special benefits to its participants. Traditional marriage and benefit policies further state interests in responsible procreation by encouraging biological parents to remain together, a rationale that cannot extend to same-sex couples. Congress and the States may conclude that discarding a distinction so deeply rooted in history and social experience could carry undesirable consequences, particularly where such change would utterly negate any apparent rationale for the government to afford special recognition and benefits to a limited set of relationships as “marriages.”

Review is justified not only because the decision below invalidated a federal statute, but also because it denies any relationship between DOMA and responsible procreation, and thereby casts doubt on all traditional marriage laws.

The brief quotes the 2005 Indiana Court of Appeals opinion in Morrison v. Sadler three times, including at pp. 22-23. Here is an ILB entry from Jan. 21, 2005 quoting press coverage at the time; here is a Feb. 18, 2005 entry reporting that the three couples who brought the Indiana suit had decided not to appeal. Quoting from the Star story:
Dawn Egler said the couples spoke to several people about making an appeal to the state Supreme Court.

"They all agreed that the risk of moving forward outweighed the benefits," she said.

The downside included the possibility of an unfavorable ruling, which would set a legal precedent that could hinder future challenges -- and an anti-gay backlash.

"If the plaintiffs had appealed and lost, the Supreme Court decision would have had influence beyond Indiana's borders. Just as the Indiana appellate court quoted from the legal opinions of sister states in its decision, so sister states could use an Indiana Supreme Court decision to deny same-sex families marriage-based rights," said Jennifer A. Drobac, an associate professor at the Indiana University School of Law-Indianapolis.

Somewhat ironic, isn't it...

As background, here is a Sept. 27, 2010 ILB entry on another case where the Indiana Attorney General and his Solicitor General took the lead on behalf of the State of Indiana, here opposing gay marriage in California before the 9th Circuit.

It turns out Morrison is quoted four times in the AG's 2010 amicus brief. Here from pp. 27-28:

Moreover, same-sex parents can never become parents unintentionally through sexual activity. Whether through surrogacy or reproductive technology, same-sex couples can only become biological parents by deliberately choosing to do so, requiring a serious investment of time, attention, and resources. Morrison, 821 N.E.2d at 24. Consequently, same-sex couples do not present the same potential for unintended children and the state does not necessarily have the same need to provide such parents with the incentives of marriage.

Posted by Marcia Oddi on August 23, 2012 07:57 PM
Posted to Indiana Government