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Monday, April 27, 2015

Ind. Gov't. - "Once-vocal Indiana now silent on gay marriage bans" and some history

On Sept. 27, 2010, the ILB had this post, headed "AG Zoeller files brief opposing gay marriage in California."

On behalf of the citizens of the State of Indiana, the Indiana Attorney General's office is the lead author on an amicus brief that was, according to this AP story out of Wyoming, submitted Friday to the 9th Circuit U.S. Court of Appeals:
[The brief] said that the Constitution does not require marriage to include same-sex couples. The 39-page brief also said that states, not federal courts, have final say in whether to allow same-sex marriages.

A federal judge ruled last month that California’s Proposition 8, a voter-passed ban on same-sex marriage, was unconstitutional. Judge Vaughn Walker ruled there was no legitimate state interest in preventing same-sex marriages and that “moral disapproval” alone wasn’t sufficient reason to justify banning it.

The ILB has received a copy of the brief of the amici states. Indiana is joined on the brief by the states of (or at least by the attorney generals of the states of) Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah and Wyoming.
In 2013, the Indiana Attorney General made the State of Indiana the lead author in amicus briefs opposing marriage equality in both of the Prop 8 and DOMA cases then pending before the SCOTUS.

On July 23, 2014 an ILB post points to "the same 10 states that have signed on to the numerous amicus briefs authored in Indiana and filed by Attorney General Zoeller on behalf of the citizens of the State of Indiana in same-sex marriage cases throughout the country. See for example, this amicus brief, authored in Indiana and filed by the State of Indiana in the 9th Circuit, in support of the Governor and Attorney General of the State of Nevada. It was joined by ALABAMA, ALASKA, ARIZONA, COLORADO, IDAHO, MONTANA, NEBRASKA, OKLAHOMA, SOUTH CAROLINA AND UTAH."

In this June 23, 2014 post, the ILB quotes from, and responds to, an opinion piece of AG Zoeller defending his office's involvement in cases in other states.

And here, on April 7th of this year, the ILB quotes a story from the Gannett's Maureen Groppe reporting that:

Indiana was not among the 15 states, all led by Republican governors, that filed briefs calling for the bans in Michigan, Ohio, Kentucky and Tennessee to be upheld.

Bryan Corbin, a spokesman for Indiana Attorney General Greg Zoeller, said the state did not weigh in because the Supreme Court let stand last year a lower court's rejection of Indiana's ban. Corbin said Zoeller felt his office had "fulfilled our duty to defend the statute."

This weekend the same reporter expanded her story, in a long report headed "Once-vocal Indiana now silent on gay marriage bans." Some quotes:
WASHINGTON — Despite vigorously defending a state's right to prohibit same-sex marriages for years, the Indiana attorney general's office is not weighing in on the case that is expected to settle the issue.

Indiana is not among the 17 states asking the U.S. Supreme Court to side with Michigan, Ohio, Kentucky and Tennessee in the challenges to those states' gay marriage bans to be argued before the court Tuesday.

Indiana Attorney General Greg Zoeller says he no longer has a duty to defend that position after fighting for the state's ban all the way to the Supreme Court last year.

But Indiana's silence is quite a change from two years ago, when the high court last debated the issue. Zoeller's office was 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. * * *

Indiana was an early advocate, according to a research paper from the University of San Francisco School of Law, of the argument that marriage primarily exists to encourage couples to procreate responsibly. Because gay couples can't get pregnant by accident, the argument goes, states shouldn't have to allow them to marry. (That justification was ridiculed by the federal judges who struck down Indiana's ban last year but was used by the federal judges upholding the state bans being reviewed by the Supreme Court.)

[ILB: For more on the AG's "responsible procreation" argument, see this Aug. 23, 2012 ILB post, which traces its roots to the State's arguments in the 2005 Court of Appeals challenge to Indiana's marriage laws in the case of Morrison v. Sadler.]

Zoeller's office in recent years wrote briefs in defense of other states' bans and defended challenges to Indiana's law filed after the Supreme Court ruled unconstitutional a ban on providing federal benefits to married gay and lesbian couples.

Although some attorneys general have declined in recent years to defend their state's bans, they had a duty to do so, Zoeller argues in a recent article in the Indiana Law Journal. Attorneys general should always defend a state statute, even if it's a weak defense, unless there is no chance of prevailing based on past court rulings, he wrote. * * *

But Zoeller's obligation to defend Indiana's statute ended last year when the Supreme Court rejected the state's appeal of the 7th U.S. Circuit Court of Appeals' decision, according to his spokesman.

"Attorney General Zoeller decided after the Supreme Court declined to hear Indiana's case that we had fulfilled our duty to defend the statute and our office would not join in the amicus briefs in Obergefell v. Hodges," spokesman Bryan Corbin said of the pending case.

That decision was a surprise to Steve Sanders, an Indiana University Maurer School of Law professor who co-wrote a brief supporting the challenge to the bans in Michigan, Ohio, Kentucky and Tennessee.

"The Indiana attorney general's office had been sticking its nose into marriage cases that it had no direct connection to for years," Sanders said. "So the fact that they now have finally thrown in the towel, when the issue is on the brink of a Supreme Court decision, really does surprise me." * * *

But Jim Bopp, a Terre Haute lawyer who authored a brief supporting state bans that was submitted by conservative members of the Republican National Committee, said Zoeller should not have given up the fight.

"If the court rules in favor of traditional marriage, then Indiana's law will go back into effect," Bopp said. "The whole future of Indiana's current law will be affected by the decision of the court in this case."

Posted by Marcia Oddi on April 27, 2015 09:48 AM
Posted to Indiana Government