Judge rules Indiana’s marriage discrimination law violates Constitutional rights

These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.

With that clear statement, US District Court judge Richard Young struck down Indiana’s ban on same-sex marriages, clearing the way for couples to get married here in Indiana — or to have their marriages from other states recognized. Judge Young ruled that Indiana’s marriage discrimination law violated both the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The news is everywhere, and I’ve seen several people quote heavily from the conclusion of Judge Young’s opinion. But I wanted to just pull out and comment on a few passages from Young’s clear and smartly-written opinion.

One quick initial note: Young mentions “More Than Just a Couple: 614 Reasons Why Marriage Equality Matters in Indiana” — a report by the IU Maurer School’s LGBT Project and Indiana Equality Action. That project garnered lots of media attention, and I think has helped in changing the way Hoosiers talk about marriage equality.

Now, back to the decision itself.

In evaluating the Due Process Clause claim, Judge Young first looked at how broadly the fundamental right to marriage should be defined. He rejected the argument that it should be narrowly defined by the “traditional definition,” and instead looked to Loving v. Virginia:

If the Court in Loving had looked only to the “traditional” approach to marriage prior to 1967, the Court would not have recognized that there was a fundamental right for Mildred and Richard Loving to be married, because the nation’s history was replete with statutes banning interracial marriages between Caucasians and African Americans. Notably, the Court did not frame the issue of interracial marriage as a “new” right, but recognized the fundamental right to marry regardless of that “traditional” classification.

Young deliberately drew a distinction between this broader view of the right to marriage and the obtusely specific definition used in the appalling majority opinion from Bowers v. Hardwick:

There, the court narrowly framed the issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy … .” Not surprisingly, with the issue framed so narrowly and applying only to a small classification of people, the Court found that there was no fundamental right at issue because our history and tradition proscribed such conduct.

Bowers was later overturned by the Supreme Court:

In 2003, the Supreme Court recognized its error and reversed course. […] Notably, the Court did not limit the right to a classification of certain people who had historical access to that right.

After determining that marriage — broadly defined — is, in fact, a fundamental right, Young then proceeded to apply strict scrutiny to Indiana’s claims.

Here, Defendants proffer that the state’s interest in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create. The court does not weigh whether or not this is a sufficiently important interest, but will assume that it is.
Defendants have failed to show that the law is “closely tailored” to that interest.

As many people have pointed out, there’s little connection between the state’s ostensible purpose and the scope of the law:

For example, the State’s laws do not consider those post-menopausal women, infertile couples, or couples that do not wish to have children.

Therefore, Young ruled, Indiana’s same-sex marriage ban violates the Fourteenth Amendment’s due process protections.

Judge Young then applied a more deferential “rational basis” scrutiny to the Equal Protection Clause claims, and first dismissed the claim that Indiana’s marriage ban discriminates on the basis of gender before finding that the ban does discriminate on the grounds of sexual orientation

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, despite the claims of the defendants:

Defendants respond that the marriage laws do not discriminate against same-sex couples because they may marry just like opposite-sex couples may marry; the law merely impacts them differently.

This de jure dodge is, of course, well-known from Anatole France’s famous maxim that “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

Judge Young rightly sided with the plaintiffs, who argued that the “primary purpose” of the law was to exclude same-sex couples from marriage. He based this on the timing of Indiana’s “re-affirming” of its marriage laws in the context of the Defense of Marriage Act and Hawaii’s courts overturning the state’s gay marriage ban – and also the title of Section 31–11–1–1: “Same sex marriages prohibited.” The title itself “makes clear that the law was reaffirmed in 1997 not to define marriage but to prohibit gays and lesbians from marrying the individual of their choice.” (Emphasis added.)

Unlike the specific case cited by the Indiana officials, gay and lesbian couples in Indiana are “similarly situated in all relevant aspects to opposite-sex couples for the purposes of marriage.”

The court finds that there is no rational basis to exclude same-sex couples. The purpose of marriage – to keep the couple together for the sake of their children – is served by marriage regardless of the sexes of the spouses.

And, most crucially:

Defendants proffer no reason why excluding same-sex couples from marriage benefits opposite-sex couples.

Young then provided a brief discussion of Indiana’s refusal to recognize legal same-sex marriages performed in other states, concluding:

The State of Indiana chose one group to single out for disparate treatment. The State’s laws place same-sex marriages in a second class category, unlike other marriages performed in other states. Thus, like the Supreme Court in Windsor, this court can conclude that this law is motivated by animus, thus violating the Equal Protection Clause.

Young’s decision includes references to many of the latest round of cases involving bans on same-sex marriage — leaning heavily on the US Supreme Court’s opinion in US v. Windsor, but also citing the recent decisions by US District Courts in Kentucky (Bourke v. Beshear), Ohio (Henry v. Himes), and Utah (Kitchen v. Herbert).

He concludes by placing his decision in context:

In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love.

Young declined to issue a stay on his opinion, leaving county clerks around the state scrambling to figure out how to handle this legal change. Some, like Marion County’s Beth White, embraced the challenge and stayed open late to serve the hundreds of Hoosiers who rushed to take advantage of their newfound equality. Others were more cautious; still others resisted the law. (Andy Markle has done an amazing job tracking the county-by-county progress on Twitter.)

Governor Pence — who was removed as a defendant in these cases by Judge Young — said that he supported Attorney General Greg Zoeller’s move to appeal the decision.

I’m amazed that this decision came only a few months after Indiana legislators voted to alter — and thus delay — a proposed anti-gay constitutional amendment. (And just last week, my church’s denomination voted to allow pastors to perform marriages for all couples where it is legal.) But despite the apparent speed of this progress, it wouldn’t have been possible without decades of hard work by people all across the country. We are all indebted to your vision and tireless effort.