Marriage: It's for the children 

Indiana advocates of gay marriage are confident a federal judge's ruling on an emergency recognition of a same sex couple's marriage will lean in their favor. They also believe the lengthy deliberations mean a positive opinion on the broader case that started it all. But despite the pending decision, the state of Indiana is already pushing the argument to the next level.

U.S. District Court Judge Richard L. Young is expected to issue his opinion soon (he hadn't as we went to press) on whether or not he will stay his ruling requiring Indiana to recognize the marriage of Amy Sandler and Niki Quasney, who were married legally in Massachusetts. Their complaint was added to a case already filed, but was expedited because of Quasney's stage IV ovarian cancer.

click to enlarge Amy Sandler (left) and Niki Quasney (right) are fighting to have their marriage recognized in Indiana. - PHOTO SUBMITTED
  • Amy Sandler (left) and Niki Quasney (right) are fighting to have their marriage recognized in Indiana.
  • photo submitted

The plea for Quasney's wife and children to be recognized on her impending death certificate for eligibility of death benefits was considered a motivating factor for Young to issue a preliminary injunction on their complaint separate from the original complaint.

The original case still before Judge Young, Baskin vs. Bogan et. al., involves a group of same-sex couples and their minor children who are seeking the right to marry in Indiana.

When Judge Young granted the preliminary injunction on May 8, the state immediately requested a stay on that ruling so Indiana would not have to recognize Sandler and Quasney's East Coast nuptials. And now, Indiana Attorney General Greg Zoeller, with the assistance of State Solicitor General Thomas Fisher and other counsel, are appealing the preliminary injunction to the 7th Circuit Court of Appeals, even though Young has yet to rule on their stay request or the original complaint.

click to enlarge Indiana Attorney General Greg Zoeller
  • Indiana Attorney General Greg Zoeller
Last week, Zoeller filed a brief with the court spelling out the state's case for the appeal. Although the appeal is just to Judge Young's ruling that Sandler and Quasney be recognized as a married couple, the brief outlines the state's position for the entire case that is still pending. David Orentlicher, Samuel R. Rosen Professor of Law at the Indiana University Robert H. McKinney School of Law in Indianapolis, says there could be a question of procedure since the lower court has yet to rule on Indiana's stay request.

Bryan Corbin, Public Information Officer with the State Attorney General's office, says the brief is filed under a process known as interlocutory appeal, where a lower court's ruling on a preliminary injunction motion can be appealed to the higher court even though the underlying lawsuit at the lower court is not yet fully decided or concluded.

At the heart of the issue is the definition of marriage. Under Title 31, Article 11, Chapter one, section one of the Indiana Code of Law:

"Only a female may marry a male. Only a male may marry a female. A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized."

But while the state's definition spells out who can marry, it does not identify why the law is mandated in this way. The "why," as spelled out in the latest brief submitted to the appellate court, has to do with regulation and raising children.

The Summary of Argument reads:

"With respect to state government's involvement, marriage is regulation. It is a means of enticing individuals whose sexual intercourse may produce children to enter voluntarily into a relationship that the government recognizes and regulates for the sake of protecting and providing for any children the couple's sexual union may produce. The only couples that fall into this category are opposite-sex couples, which is why (at least as a governmental matter) marriage has traditionally been limited to them." (pg. 7)

In other words, the reason why state government defines marriage as legal only between a man and a woman is to encourage couples to have children and the state has rules to protect and provide for those children. However, Orentlicher says this definition isn't an accurate representation of married couples or families living in Indiana.

click to enlarge David Orentlicher, Samuel R. Rosen Professor of Law, Indiana University Robert H. McKinney School of Law
  • David Orentlicher, Samuel R. Rosen Professor of Law, Indiana University Robert H. McKinney School of Law
"The definition put forth by the state doesn't account for older couples, where the woman has already gone through menopause and is unable to bear children, nor does it account for couples who choose not to have children," said Orentlicher.

The state's definition also doesn't account for couples who, for one reason or another, choose not to bear children but rather build their families through adoption. That option is applicable to both heterosexual and homosexual couples. Medically speaking, the act of sexual intercourse isn't necessary for procreation, either.

"It is possible for a female couple to bear children through artificial insemination and for a male couple through surrogacy, so the state's argument really doesn't apply there, either," said Orentlicher.

The state's argument does not account for any other type of family structure, except for the traditional family where the biological mother and father are present. And that is where advocates for same-sex marriage say the state's argument is flawed. Kyle Megrath, marriage coordinator for Hoosiers Unite for Marriage, says recognizing and allowing same sex marriages in Indiana would also protect the children of same sex couples as the state claims marriage is supposed to do.

"This is about protecting families and respecting loving, committed couples in Indiana who deserve the freedom to marry. Protecting Hoosier families means protecting all Hoosier families," said Megrath. "At Hoosiers Unite for Marriage, we have heard and shared countless stories of the legal and emotional harm that occurs when a state refuses to extend the freedom to marry to all loving and committed couples and their families. All Hoosiers should feel like Indiana is a welcoming place where they are able to raise their kids and protect their loved ones."

It's unclear where this definition of marriage in regards to procreation and child-rearing originates. The brief cites Indiana code and case law to support the state's definition. There is nothing in the state constitution that even mentions marriage or family.

Title 31 is the section of Indiana Code dedicated to family law. While Article 11 is about marriage, most of it is dedicated to the logistics of marriage (premarital agreements, consent, authority to solemnize, etc.) and actions and offenses that would make a marriage void. The only mention of marital permission regarding procreation is an allowance for an underage girl to marry, with parental consent, if she is pregnant or already a mother.

The rest of Title 31 addresses what one would expect family to address: everything from divorce, custody, support, and visitation to adoption, child services administration, programs, child care, and juvenile law.

While the definition of marriage is at the heart of the argument, it is rights of due process and equal protection guaranteed under the 14th Amendment of the U.S. Constitution that take the argument to federal court. The state is asking the appellate court to answer various legal questions and ultimately reverse the lower court's decision.

The biggest question, of course is the constitutionality of traditional marriage definitions. The brief claims the appeal is based on the district court's comments in the preliminary injunction; the state is assuming Judge Young will rule in favor of the plaintiffs for both the stay request and the broader case of Baskin vs. Bogan.

"As state government's lawyer, the Indiana Attorney General's Office is required to defend the Indiana marriage statute the Legislature passed and also represent the state defendants in court, both in the trial court and in any appeal," says Corbin. "The State has noted the Legislature has the legal authority to determine how marriage shall be defined within Indiana's borders; and Indiana's Legislature has chosen in statute to define marriage in the traditional way - between one man and one woman - and to not legally recognize same-sex unions granted in other states."

Lambda Legal, the non-profit organization that filed the case on behalf of Indiana's same-sex couples, is waiting for Judge Young's ruling and at the same time, is preparing their response to the state's appeal. Staff attorney Paul Castillo says that response is due to the 7th Circuit by July 18.

"Without giving away our response to the state, I would say should the district court rule on the ultimate question before July 19, the focus [of our response] would most likely shift to that ruling," said Castillo.

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