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Friday, March 22, 2013

Courts - "Indiana leading states supporting gay marriage bans"

Updating this ILB entry from February 26th, which includes links to several earlier ILB entries, a story today by Maureen Groppe of the Gannett Washington Bureau reports the same -- that Indiana is leading the group of states objecting to marriage equality. Some quotes from the lengthy story, here as it appears in the Lafayette Journal Courier:

WASHINGTON — The two gay marriage cases that hit the Supreme Court next week have divided states, and Indiana is leading the side defending the right to ban same-sex unions.

Indiana Attorney General Greg Zoeller is the primary author of briefs submitted by states in support of California’s gay marriage ban and of a federal law defining marriage as the union between a man and a woman. Such briefs are filed by those who are not part of the litigation and won’t appear in court, but who believe the court’s decision could affect them.

“The state of Indiana has been a leader in advocating generally for the legal authority of states to determine their own marriage license definitions and specifically for the traditional marriage definition of one man and one woman,” Zoeller said in a statement.

A lower court’s decision to strike down California’s ban, Zoeller wrote in one brief, is a “disintegration of perhaps the most fundamental and revered cultural institution of American life: marriage as we know it.”

Zoeller, however, said that he’s not arguing against same-sex marriage as much as he’s advocating that states should be able to make their own decisions.

“People always think it’s a personal advocacy when, in fact, I’m arguing our current state statute,” Zoeller said in a January interview. “If they tell us that we can’t limit the licensing of marriage, now we know.”

But there’s a clear political divide among states that have chosen to speak out on this issue.

The 20 other attorneys general that signed Zoeller’s brief or wrote their own statement of support are Republican, as Zoeller is.

The 15 attorneys general that have weighed in on the other side are Democrats. * * *

Dale Carpenter, a conservative constitutional law expert who has argued that gay marriage bans are bad politics and policy for Republicans, said states that are taking the lead on defending their bans “would appear to be behind the curve nationally to some extent.”

The increasing support for same-sex marriage is one of the largest changes in public opinion on any policy issue over the past decade, according to the Pew Research Center.

“But my guess is that in their individual states, there may still be popular support for these gay marriage bans,” said Carpenter, a law professor at the University of Minnesota Law school. “In fact, their actions may reflect the fact that their own state citizens do support these bans.” * * *

Because of the fast moving public opinion on the issue, constitutional law expert Ira Lupu said it’s possible the Supreme Court will rule in a way that will allow states to continue to decide for themselves whether to allow gay couples to marry.

“Everybody now thinks that (legalizing gay marriage) is inevitable, that this will get approved state-by-state. It will just take time,” said Lupu, a professor at George Washington University. For that reason, he said, many argue that it would be “healthier, more politically legitimate, to let this work through a state at a time, rather than for the Supreme Court to decide for all 50 states at once.”

Indiana makes that argument in its brief to the court.

“Federal courts should not stultify democratic principles by declaring a winner of the marriage debate,” Zoeller wrote. “The court should instead continue to recognize the importance of the people’s role in fashioning the standards for marriage and children — traditionally the absolute preserve of the states.” * * *

Indiana argues that there’s a legitimate government purpose for conferring exclusive benefits on heterosexual married couples.

“Opposite-sex couples are the only procreative relationships that exist, which means that such couples are the only ones the government has a need to encourage,” Zoeller wrote in one of the coalition briefs.

If that argument isn’t valid, he continued, than states won’t have any justification for denying marriage status to “any number of persons who desire a committed relationship with each other.”

Massachusetts, the first state to allow same-sex marriage, counters that such states have continued to place other restrictions on marriage. For example, there are still appropriate and constitutionally permissible restrictions on consent ages, the number of spouses someone can have, and whether close relatives can marry.

“Thus, even after gender is removed from consideration, other state regulations continue to advance important governmental interests and remain valid,” Massachusetts and 12 other states wrote in a brief.

States are not the only interests that have contributed to the more than 170 briefs submitted in hopes of influencing the Supreme Court’s decisions. * * *

[Professor Lupu of George Washington University] said so many groups are weighing in because gay marriage is “the civil rights issues of our generation.”

“On the government’s side, certainly on all the states’ side, it’s one where the politics is very visible, very intense and people are paying attention,” Lupu said. “People who are politically active want to know, what’s our state attorney general doing? Are we in this? Are we out of it? Are we sticking up for ourselves? Are we sticking up for the side that we believe in? So it’s highly visible.”

Note: The story also appears in today's Indianapolis Star.

Posted by Marcia Oddi on March 22, 2013 10:31 AM
Posted to Courts in general