ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE,
Doris Ann Sadler, in her official capacity
KENNETH J. FALK as Clerk of the Marion Circuit Court:
Indiana Civil Liberties Union
Indianapolis, Indiana ANTHONY OVERHOLT
Office of Corporate Counsel
ATTORNEY FOR APPELLEE,
Sharon Dugan, in her official capacity
as Clerk of the Hendricks Circuit Court:
GREGORY E. STEUERWALD
Deckard & OBrien
ATTORNEY FOR INTERVENOR,
Steve Carter, Attorney General of Indiana:
THOMAS M. FISHER
ATTORNEY FOR AMICUS CURIAE,
FOCUS ON THE FAMILY and FAMILY RESEARCH COUNSEL:
CARA C. PUTMAN
Bennett Boehning & Clary
ATTORNEY FOR AMICUS CURIAE,
CATHOLICS ALLIED FOR THE FAITH, INC.:
BRIAN E. BAILEY
ATTORNEY FOR AMICUS CURIAE,
HONORABLE MEMBERS OF THE
INDIANA GENERAL ASSEMBLY:
HERBERT A. JENSEN
Jensen & Associates
ATTORNEY FOR AMICUS CURIAE,
SOCIETY OF CATHOLIC SOCIAL
CHARLES P. RICE
Boveri Murphy Rice Ryan and LaDue, LLP
South Bend, Indiana
ATTORNEYS FOR AMICUS CURIAE,
THE INDIANA FAMILY INSTITUTE,
THE AMERICAN FAMILY
ASSOCIATION OF INDIANA, EAGLE
FORUM OF INDIANA:
ERIC ALLAN KOCH
The Koch Law Firm
PAUL BENJAMIN LINTON,
Pro hac vice
IN THE COURT OF APPEALS OF INDIANA
RUTH MORRISON, et al., ) ) Appellants-Plaintiffs, ) ) vs. ) No. 49A02-0305-CV-447 ) DORIS ANN SADLER, et al., ) ) Appellees-Defendants. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable S.K. Reid, Judge
Cause No. 49D13-0211-PL-1946
January 20, 2005
OPINION - FOR PUBLICATION
Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). Unlike federal equal
protection analysis, there is no varying or heightened level of scrutiny based on
the nature of the classification or the nature of the right affected by
the legislation. Id.
The State has no burden to demonstrate that the statute is constitutional; the burden is entirely upon the Plaintiffs to overcome the presumption of constitutionality and to establish a constitutional violation. See Dvorak v. City of Bloomington, 796 N.E.2d 236, 239 (Ind. 2003). Enactments challenged under the Indiana Constitution are presumed to be constitutional until clearly overcome by a contrary showing, and any doubts are resolved against the party bringing the challenge. Id. at 237-38. The party challenging the statute must negative every conceivable basis which might have supported the classification. Collins, 644 N.E.2d at 80 (quoting Johnson v. St. Vincent Hosp., 273 Ind. 374, 404-05, 404 N.E.2d 585, 604 (1980)). Collins requires only that the disparate treatment accorded by legislation, not the purposes of the legislation, be reasonably related to the inherent characteristics that distinguish the unequally treated classes, although legislative purposes may be a factor considered in making the reasonable relationship determination. Dvorak, 796 N.E.2d at 239. However, our supreme court has also stated that it will not inquire into the legislative motives prompting such classification. Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974)). Rather, [l]egislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable. So long as the classification is based upon substantial distinctions with reference to the subject matter, we will not substitute our judgment for that of the legislature . . . . Id.
The practical effect of Collins and cases following it is that statutes will survive Article 1, § 23 scrutiny if they pass the most basic rational relationship test. In fact, our research has revealed that of the approximately ninety reported Equal Privileges and Immunities cases following Collins and its clarification of Article 1, § 23 analysis, only three have finally resulted in holdings (after supreme court review) that a particular statute violated Article 1, § 23. Two of those cases were Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), and Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999), which both held that the two-year occurrence-based statute of limitations for medical malpractice actions violated Article 1, § 23, but only as applied to those particular plaintiffs. Additionally, in Humphreys v. Clinic for Women, Inc., 796 N.E.2d 247 (Ind. 2003), the court held that Indianas restriction of Medicaid coverage for abortions to cases of rape, incest, or endangerment of the mothers life was facially valid under Article 1, § 23, but violated that provision as applied to women who needed an abortion to avoid serious risk of substantial and irreversible impairment of a major bodily function, but not necessarily death. See footnote No statute or ordinance has ever been declared facially invalid under the Collins test. See footnote
The Plaintiffs here challenge Section 31-11-1-1 only under the first part of the Collins test: they contend the disparate treatment accorded by the statute is not reasonably related to inherent characteristics that distinguish the unequally treated classes, i.e., opposite-sex couples and same-sex couples. See footnote The Plaintiffs also note the extent of the differential treatment caused by prohibiting same-sex couples from marrying, such as with respect to evidentiary privileges for spousal communications, the making of health care decisions for a spouse, inheritance rights, and various government benefits. The Plaintiffs assert that there are three possible, but ultimately unreasonable, reasons for the legislative classification: to promote procreation and child-rearing by both natural parents, to promote the traditional family unit, and to promote the integrity of traditional marriage. The State agrees that these are the justifications for the differential treatment but, of course, claims that they are sufficiently rational justifications under the Collins test. We are satisfied that the Plaintiffs, as the ones challenging the statute, have failed to demonstrate that the marital procreation justification is manifestly unreasonable or arbitrary. Because we make this determination, we will not address the other two proffered justifications.
We begin by noting one of the Plaintiffs overarching arguments, namely their claim that recognizing same-sex marriage would not directly harm the traditional institution of opposite-sex marriage and the States interest in marital procreation. We conclude the Plaintiffs claim that recognizing same-sex marriage or unions will not harm the institution of opposite-sex marriage is not dispositive of the constitutional issue before this court. The key question in our view is whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation. If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable under Article 1, § 23 of the Indiana Constitution.
The Plaintiffs also argue that the overall purpose behind all of Indianas Family Law Code is the protection of families. The statutory preamble to the Code listing its policies and purposes includes recogniz[ing] the importance of family and children in our society, recogniz[ing] the responsibility of the state to enhance the viability of children and family in our society, and strengthen[ing] family life by assisting parents to fulfill their parental obligations . . . . Ind. Code § 31-10-2-1. They also note that pursuant to a decision by this court, same-sex couples are permitted to adopt children. See In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003); see also In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004). They further note that aside from certain testing and record-keeping requirements, the field of assisted reproduction has been left largely unregulated in Indiana. See I.C. §§ 16-41-14-1 to 20. Finally, they claim, and we do not dispute, that large numbers of same-sex couples in this state are choosing to raise children together, either by adoption or taking advantage of assisted reproduction technologies. Based upon these facts, the essence of the Plaintiffs argument is that it contravenes the central purpose of the Indiana Family Law Code to deny marriage to same-sex couples because although many of them are raising families, they are precluded from the multiple benefits associated with marriage. Likewise, the Plaintiffs essentially contend, it actually would further the States interests in marriage and the strengthening of families to allow same-sex couples to raise families within the institution of marriage.
This argument does not recognize the key difference between how most opposite-sex couples become parents, through sexual intercourse, and how all same-sex couples must become parents, through adoption or assisted reproduction. See footnote Becoming a parent by using artificial reproduction methods is frequently costly and time-consuming. Adopting children is much the same.See footnote Those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes. Those processes also require a great deal of foresight and planning. Natural procreation, on the other hand, may occur only between opposite-sex couples and with no foresight or planning. All that is required is one instance of sexual intercourse with a man for a woman to become pregnant.
What does the difference between natural reproduction on the one hand and assisted reproduction and adoption on the other mean for constitutional purposes? It means that it impacts the State of Indianas clear interest in seeing that children are raised in stable environments. Those persons who have invested the significant time, effort, and expense associated with assisted reproduction or adoption may be seen as very likely to be able to provide such an environment, with or without the protections of marriage, because of the high level of financial and emotional commitment exerted in conceiving or adopting a child or children in the first place.
By contrast, procreation by natural reproduction may occur without any thought for the future. The State, first of all, may legitimately create the institution of opposite-sex marriage, and all the benefits accruing to it, in order to encourage male-female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from casual intercourse.See footnote Second, even where an opposite-sex couple enters into a marriage with no intention of having children, accidents do happen, or persons often change their minds about wanting to have children. The institution of marriage not only encourages opposite-sex couples to form a relatively stable environmentSee footnote for the natural procreation of children in the first place, but it also encourages them to stay together and raise a child or children together if there is a change in plans.
One of the States key interests in supporting opposite-sex marriage is not necessarily to encourage and promote natural procreation across the board and at the expense of other forms of becoming parents, such as by adoption and assisted reproduction; rather, it encourages opposite-sex couples who, by definition, are the only type of couples that can reproduce on their own by engaging in sex with little or no contemplation of the consequences that might result, i.e. a child, to procreate responsibly. The State recognized this during oral argument when it identified the protection of unintended children resulting from heterosexual intercourse as one of the key interests in opposite-sex marriage. The institution of opposite-sex marriage both encourages such couples to enter into a stable relationship before having children and to remain in such a relationship if children arrive during the marriage unexpectedly. The recognition of same-sex marriage would not further this interest in heterosexual responsible procreation. See footnote Therefore, the legislative classification of extending marriage benefits to opposite-sex couples but not same-sex couples is reasonably related to a clearly identifiable, inherent characteristic that distinguishes the two classes: the ability or inability to procreate by natural means.
Justice Cordy of the Supreme Judicial Court of Massachusetts has aptly described the connection between marriage, heterosexual reproduction, and childrearing in a way that emphasizes our point regarding responsible procreation and the fundamental difference between same-sex and opposite-sex couples:
Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined . . ., but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism. . . . The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.
Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 995-96 (Mass. 2003) (Cordy,
J., dissenting) (internal citations omitted).
More specific to Indiana and the question arising under the Indiana Constitution, our supreme court made similar observations regarding opposite-sex marriage long before the current debate regarding same-sex marriage erupted:
Marriage is the basic unit of our society. Through the institution of marriage, biological drives are directed into channels of socially accepted activity; it encourages the exercise of intimate affections on a most personal basis; children are theoretically provided with a stable environment; a means is provided by which such children might be reared and educated; individual initiative and self reliance are nurtured; family continuity from generation to generation is established.
OConnor v. OConnor, 253 Ind. 295, 310, 253 N.E.2d 250, 258 (1969). Members of a same-sex couple who wish to have a child, on the other hand, have already demonstrated their commitment to child-rearing, by virtue of the difficulty of obtaining a child through adoption or assisted reproduction, without the State necessarily having to encourage that commitment through the institution of marriage. Conversely, the casual intimate acts of a same-sex couple will never result in a child, but those of an opposite-sex couple can and frequently do.
Thus, although we accept that there are a growing number of studies indicating that same-sex couples are at least as successful at raising children as opposite-sex couples, such studies are irrelevant to the question of whether the Indiana Constitution requires that same-sex couples be allowed to marry. Additionally, it is quintessentially a task for the legislature to consider the weight to be assigned to these various studies, especially in light of the existence of some criticism of them and the relative novelty of the same-sex family structure, in deciding whether civil marriage benefits should be extended to same-sex couples. See, e.g., Goodridge, 798 N.E.2d at 979-80 (Sosman, J., dissenting).
We also do not need to address whether the only purpose of civil marriage is the States interest in encouraging opposite-sex couples to procreate and raise children responsibly. We agree and acknowledge that modern society attaches importance to the concept of marriage beyond procreation and establishing a stable environment for the raising of children. Nonetheless, it would also be improper to ignore that procreation and the raising of children is, and has been for a long time, recognized as one of the key purposes of marriage that is very important to many couples entering that institution, even if it is not the only purpose. We reiterate that Collins requires only that the disparate treatment accorded by legislation, not its purposes, be reasonably related to the inherent characteristics that distinguish the unequally treated classes. Dvorak, 796 N.E.2d at 239. We may not inquire into the legislative motives prompting the classification at issue in this case to divine whether the legislatures true purpose was to discriminate against homosexual couples. See Collins, 644 N.E.2d at 80 (quoting Chaffin v. Nicosia, 261 Ind. 698, 701, 310 N.E.2d 867, 869 (1974)).
The Plaintiffs also argue extensively that it is irrational to justify opposite-sex only marriage on procreative grounds because there is no requirement that couples wishing to marry prove their fertility or willingness to procreate, and furthermore even definitively sterile persons, such as elderly women, are allowed to marry. This is an overbreadth argument it essentially posits that the State is required to more carefully draw lines concerning who may marry if it truly has an interest in promoting responsible procreation by opposite-sex couples, by excluding opposite-sex couples from marriage if they cannot, or will not, procreate.
A reasonable legislative classification is not to be condemned merely because it is not framed with such mathematical nicety as to include all within the reason of the classification and to exclude all others. Collins, 644 N.E.2d at 80 (quoting Cincinnati, Hamilton & Dayton Ry. Co. v. McCullom,183 Ind. 556, 561, 109 N.E. 206, 208 (1915)). There was a rational basis for the legislature to draw the line between opposite-sex couples, who as a generic group are biologically capable of reproducing, and same-sex couples, who are not. This is true, regardless of whether there are some opposite-sex couples that wish to marry but one or both partners are physically incapable of reproducing.
We do not agree with some well-known opinions from other jurisdictions, most notably Vermont and Massachusetts, that the Plaintiffs have asked us to consider. We will briefly discuss these decisions because the resolution of a question arising under the Indiana Constitution may be guided by decisions from other states addressing similar questions under their constitutions. See City of Indianapolis v. Wright, 267 Ind. 471, 476, 371 N.E.2d 1298, 1300 (1978). First, in Baker v. State, 744 A.2d 864 (Vt. 1999), the Vermont Supreme Court held that the Common Benefits Clause of the Vermont Constitution, which is the rough equivalent of the Indiana Constitutions Equal Privileges and Immunities Clause, required the State of Vermont to offer legal benefits identical to those arising under marriage to same-sex couples.
We are not persuaded to follow Baker for several reasons. First, the relief sought by the Plaintiffs in this case is the issuance of actual marriage licenses, not the creation of an institution parallel to marriage such as civil unions. At oral argument, counsel for the Plaintiffs questioned the ability of this court to even dictate the creation of a civil union status. Not even the Baker majority, which otherwise crafted a very sweeping opinion, was prepared to dictate that same-sex couples in Vermont must be allowed to marry, which is the relief the Plaintiffs are seeking here. See footnote
Second, the test for analyzing legislative classifications under the Common Benefits Clause of the Vermont Constitution appears to be significantly less deferential to legislative discretion than is the Collins test for the Equal Privileges and Immunities Clause of the Indiana Constitution. The standard of review employed in Baker was whether the exclusion of same-sex couples from the benefits of marriage bore a reasonable and just relation to the governmental purpose of the exclusion. Id. at 878-79. The court also stated that there was a core presumption of inclusion, which seems to place the burden on the state to justify an exclusion, and that it would consider and balance the significance of the benefits and protections of the challenged law, whether the omission of one group from those benefits promotes the governments stated goals for the law, and whether the classification is significantly underinclusive or overinclusive. Id. at 879. The balancing of competing interests, consideration of significant under or overinclusiveness, and especially the core presumption of inclusion referred to by the Vermont Supreme Court is much different than the two-part Collins Equal Privileges and Immunities test, which we again note has never resulted in a statute or ordinance being declared facially invalid.
Finally, we decline to follow the Vermont Supreme Courts analysis of the State of Vermonts procreation justification for opposite-sex marriage. The Baker majority opinion framed the question before it as whether the states proffered interest in linking procreation and child rearing and promoting a permanent commitment between couples who have children represent valid public interests that are reasonably furthered by the exclusion of same-sex couples from the benefits and protections that flow from the marital relation? Id. at 881. In other words, the Baker court apparently was concerned with whether the recognition of same-sex unions would undermine the states interests in encouraging responsible procreation by opposite-sex couples. However, we believe the proper analysis under the Indiana Constitutions Equal Privileges and Immunities Clause is whether recognizing same-sex marriage would further the State of Indianas interest in responsible procreation, not whether such recognition would harm that interest. The Baker courts emphasis on the fact that many same-sex couples are having children through adoption and assisted reproduction, which fact we do not dispute, fails to take into account the highly significant difference in the way in which opposite-sex couples and same-sex couples become parents. This difference, inherent to each class, forms the rational basis for distinguishing between opposite-sex and same-sex couples under the Indiana Constitution.
The second case is the Goodridge case from Massachusetts, which we have already mentioned and whose result we also decline to follow. First, we observe that although the majority purports to apply a rational basis test to Massachusetts limitation of marriage to opposite-sex couples only, it frequently uses language suggesting that some stricter standard of review was being employed that was less deferential to legislative discretion. See Goodridge, 798 N.E.2d at 980-81 (Sosman, J., dissenting) (noting numerous references in the majority opinion to infringements on fundamental rights, comparisons to interracial marriage bans that required strict scrutiny review, and characterizing the choice of whom to marry, regardless of gender, as among the most basic of every individuals liberty and due process rights). This analysis is inconsistent with the substantial deference courts must accord legislative classifications under Article 1, § 23 of the Indiana Constitution.
We additionally find that the Goodridge majority opinion is largely devoid of discussion of why the Commonwealth of Massachusetts might have chosen in the first place to extend marriage benefits to opposite-sex couples but not same-sex couples. It may well be, as the majority stated, that for many people it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage. Id. at 961. However, that does not answer the question of why the government may choose to bestow benefits on one type of permanent commitment and not another. As we have identified, at least one of the reasons the government does so is to encourage responsible procreation by opposite-sex couples. Justice Cordy, in his dissent, correctly identifies this interest as being central to governmental recognition and support of opposite-sex marriage. Id. at 995-96 (Cordy, J., dissenting). The recognition of same-sex marriage would not further this interest.
We do concur with the result reached and analysis used in a decision by the Court of Appeals of Arizona. That court concluded that Arizonas version of DOMA, Ariz. Rev. Stat. § 25-101(C), did not violate state or federal guarantees of substantive due process and equal protection. Standhardt v. Superior Court, County of Maricopa, 77 P.3d 451 (Ariz. Ct. App. 2003), rev. denied (2004). That court conceded, Children raised in families headed by a same-sex couple deserve and benefit from bilateral parenting within long-term, committed relationships just as much as children with married parents. Id. at 463. Nevertheless, this did not make the limitation of marriage to opposite-sex couples irrational, as the court explained:
Indisputably, the only sexual relationship capable of producing children is one between a man and a woman. The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children. Because same-sex couples cannot by themselves procreate, the State could also reasonably decide that sanctioning same-sex marriages would do little to advance the States interest in ensuring responsible procreation within committed, long-term relationships.
Id. at 462-63. This analysis fully squares with our emphasis on whether
allowing same-sex marriage would further the States interest in encouraging responsible procreation by
opposite-sex couples, not on whether that interest would be harmed.
Additionally, recent scholarly commentary from Canada supports our position in this case. Our neighbors to the north also have been struggling with the same-sex marriage issue in recent years, leading to several decisions that have required recognition of such unions, including EGALE Canada Inc. v. Canada, [B.C. Ct. App. 2003] 225 D.L.R. (4th) 472, and Halpern v. Toronto, [Ont. Ct. App. 2003] 225 D.L.R. (4th) 529. One commentator, however, has taken strong issue with the decisions in EGALE and Halpern, as well as in Baker and Goodridge, and their treatment of the same-sex marriage issue, concluding that these courts did an unacceptable job with their performance of the very tasks that lie at the heart of judicial responsibility in virtually every case. Monte Neil Stewart, Judicial Redefinition of Marriage, 21 Can. J. Fam. L. 13, 132 (2004).
This commentator, in part, takes specific issue with the courts treatment of the procreation argument in favor of opposite-sex-only marriage, focusing primarily on the Goodridge case. The article correctly notes:
[A] central and probably preeminent purpose of the civil institution of marriage (its deep logic) is to regulate the consequences of man/woman intercourse, that is, to assure to the greatest extent practically possible adequate private welfare at child-birth and thereafter. The opinions simply avoid this point when they say that marriage law does not require an intent or ability to procreate to stay married; they miss the States point that marriages vital purpose in our societies is not to mandate man/woman procreation but to ameliorate its consequences.
Id. at 47 (emphasis in original). Furthermore, the only form of human
procreation is heterosexual and that will continue to be the case until humankind
begins human cloning. Id. at 49 (emphasis in original). The article
[T]he nature of [assisted reproduction technology] assures that conception will be the result of deliberation, planning, preparation, and commitment, which in turn assures to a high degree all the same relative to provision of private welfare at birth and thereafter. Thus, deliberative procreation by [assisted reproduction technology], for those dependent on it, to a not inconsiderable extent performs to societys benefit the role that marriage was designed to fill for the far greater number engaged in passion-based procreation . . . .
Id. at 50. This article is fully reflective of our position:
opposite-sex marriage is recognized and supported by law in large part to encourage
responsible procreation by opposite-sex couples, who are the only ones who can, in
fact, procreate by accident, while those couples, either opposite-sex or same-sex, who must
rely on adoption or assisted reproduction technology to have children have already demonstrated
a commitment to responsibility without it having to be artificially encouraged by the
The State of Indiana has a legitimate interest in encouraging opposite-sex couples to enter and remain in, as far as possible, the relatively stable institution of marriage for the sake of children who are frequently the natural result of sexual relations between a man and a woman. One commentator has put it succinctly as follows: The public legal union of a man and woman is designed . . . to protect the children that their sexual union (and that type of sexual union alone) regularly produces. Maggie Gallagher, What is Marriage For? The Public Purposes of Marriage Law, 62 La. L. Rev. 773, 782 (2002). Even accepting that many same-sex couples are successfully raising children in todays society, these couples are not at risk of having random and unexpected children by virtue of their ordinary sexual activities. Extending the benefits of civil marriage to same-sex couples would not further the States interest in responsible procreation by opposite-sex couples. The differentiation between opposite-sex and same-sex couples in Indiana marriage law is based on inherent differences reasonably and rationally distinguishing the two classes: the ability to procreate naturally. Given the high degree of deference we accord to legislative classifications, the Plaintiffs have not established that this particular classification violates the Equal Privileges and Immunities Clause of the Indiana Constitution, Article 1, § 23.
Article 1, § 1 requires that the Plaintiffs cross several high hurdles.
They have failed to do so.
First, the Plaintiffs must establish that Article 1, § 1 is capable of independent judicial enforcement. As the Plaintiffs acknowledge, our supreme court recently reviewed cases from other states interpreting constitutional provisions parallel to Article 1, § 1 and concluded that as a general rule, such provisions had not been interpreted to provide a sole basis for challenging legislation since the language is not so complete as to provide courts with a standard that could be routinely and uniformly applied. Doe v. OConnor, 790 N.E.2d 985, 991 (Ind. 2003). Ultimately, however, our supreme court concluded that it did not have to decide whether Article 1, § 1 created independently enforceable substantive rights. Id. The Plaintiffs assert that, in fact, some states have found their parallels to Article 1, § 1 to embody independently enforceable rights. It might be presumed, however, that even if the language in Doe was dicta, it is a good indicator of the courts current thinking regarding Article 1, § 1 and that it is inclined to hold that particular constitutional provision not to be judicially enforceable.
However, there are some examples of older supreme court cases that found Article 1, § 1, to be independently capable of judicial enforcement, the most recent of which is Department of Financial Institutions v. Holt, 231 Ind. 293, 108 N.E.2d 629 (1952). In that case, the court invalidated a statute limiting the amount that purchasers of retail installment contracts could agree to pay retail dealers because it was an impermissible exercise of the States police power under Article 1, § 1. Consistent with Holt, other cases predating it and paralleling its result by applying Article 1, § 1 were also economic rights cases involving the regulation of businesses or economic transactions. See footnote See Kirtley v. State, 227 Ind. 175, 84 N.E.2d 712 (1949) (invalidating statute forbidding resale of entertainment or sporting event tickets at anything other than face value); Department of Ins. v. Schoonover, 225 Ind. 187, 72 N.E.2d 747 (1947) (invalidating statute requiring certain insurance agents to work on commission, not salary); State Bd. of Barber Examiners v. Cloud, 220 Ind. 552, 44 N.E.2d 972 (1942) (invalidating regulations establishing minimum prices and hours of operation for barber shops); Street v. Varney Elec. Supply Co., 160 Ind. 338, 66 N.E. 895 (1903) (invalidating minimum wage legislation for public works projects). There is a more recent case from this court that assumed Article 1, § 1 is capable of judicial enforcement, but it too concerned the States police power to regulate lawful businesses. See City of Indianapolis v. Clints Wrecker Service, Inc., 440 N.E.2d 737 (Ind. Ct. App. 1982). See footnote
As the State points out, these cases seem much like Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539 (1905), which recognized a right of liberty of contract and invalidated a statute regulating the numbers of hours an employee could work per week because it exceeded the proper scope of New Yorks police powers and violated the Fourteenth Amendment. Lochner and its economic substantive due process reasoning have long been rejected. See McIntosh v. Melroe Co., 729 N.E.2d 972, 975 (Ind. 2000). The Plaintiffs urge nonetheless that Article 1, § 1 can evolve to embrace and judicially enforce their right to state recognition of their desire to marry. However, we are not inclined to accept this argument, given the recent dicta in Doe, the fact that no statute has been invalidated under Article 1, § 1 for over fifty years, and that prior cases that did invalidate statutes under Article 1, § 1 did so using a now-discredited view of the scope of the governments police power to regulate businesses. See footnote
Even if Article 1, § 1 is capable of independent judicial enforcement of a core value it purportedly contains, the Plaintiffs next burden is to establish that their desire to marry each other and receive accompanying state benefits is such a value.See footnote To the extent a core value under the Indiana Constitution is arguably the rough equivalent to a fundamental right under the federal or other state constitutions, most courts have not looked favorably upon finding a fundamental right to marry a person of the same sex. This includes courts that have ultimately found in favor of requiring the government to extend marriage-like benefits to same-sex couples under an equal protection-type analysis.
For example, in Baehr v. Lewin, 852 P.2d 44, 56 (Haw. 1993), the Hawaii Supreme Court held that a restriction of marriage to opposite-sex couples was subject to strict scrutiny under the Hawaii Constitutions equal protection guarantee, but nevertheless also readily concluded that the federal construct of the fundamental right to marrysubsumed within the right to privacy implicitly protected by the United States Constitutionpresently contemplates unions between men and women. This conclusion is difficult to disagree with, given the Minnesota Supreme Courts decision in Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), that bans on same-sex marriage do not violate the Fourteenth Amendment and the binding effect of the United States Supreme Courts dismissal of the appeal from that decision for want of a substantial federal question. Baker v. Nelson, 409 U.S. 810, 93 S. Ct. 37 (1972). Additionally, as the Hawaii Supreme Court noted, the first United States Supreme Court case labeling marriage a fundamental right expressly stated, Marriage and procreation are fundamental to the very existence and survival of the race. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct. 1110, 1113 (1942) (emphasis added). This language linking marriage and procreation, particularly when combined with the fact that marriage was undoubtedly viewed as an opposite-sex institution in 1942, indicates that the Court was obviously contemplating unions between men and women when it ruled that the right to marry was fundamental. Baehr, 852 P.2d at 56. Furthermore, the Hawaii court declined to find a fundamental right to same-sex marriage arising from the Hawaii constitution. Id. at 57. See also Baker, 744 A.2d at 868 (there is no doubt that the plain and ordinary meaning of marriage is the union of one man and one woman as husband and wife.); cf. also Goodridge, 798 N.E.2d at 961 (declining to address whether limitation of marriage to opposite-sex couples impacted a fundamental right of same-sex couples).
As for the Indiana Constitution, what amounts to a constitutional core value is a judicial question that depends on the purpose for which a particular constitutional guarantee was adopted and the history of Indianas constitutional scheme. Price v. State, 622 N.E.2d 954, 961 (Ind. 1993). In Price, the supreme court concluded that political speech was a core value embodied within Article 1, § 9 of the Indiana Constitution, which is its free speech provision. Id. at 963. As such, the State could not materially burden the exercise of that core value. Id. at 963-64. The court noted at length the history of Article 1, § 9, the populist, anti-government Jacksonian Democrats who drafted the 1851 Constitution, and the importance at the time of popular participation in public affairs. Id. at 961-62. By contrast, the Plaintiffs must look to a constitutional provision of vague import and which does not mention marriage, while Article 1, § 9 is clearly concerned with speech generally. In fact, the Plaintiffs can point to no history surrounding the ratification of the 1851 Indiana Constitution indicating the drafters contemplated the right to marry the spouse of ones choice, let alone someone of the same sex, and receive accompanying governmental benefits to be a core value.
The history that the Plaintiffs do point to concerning Article 1, § 1 is not helpful in finding the existence of a core value right to government-recognized marriage to any person of ones choosing. The Plaintiffs quote a delegate at the 1850 Constitutional Convention who stated that Article 1, § 1 guaranteed the right to walk abroad and look upon the brightness of the sun at noon-day[.] In re Matter of Lawrance, 579 N.E.2d 32, 39 n.3 (Ind. 1991) (quoting 1 Debates in Indiana Convention 968 (1850)). The Plaintiffs essentially wish to convert this statement, which seems to contemplate a lack of excessive governmental influence in private affairs, into public, state recognition of marriage to anyone of a persons choice as a constitutional core value. We decline to do so. To the extent that Article 1, § 1, may contain some guarantee of minimal governmental interference in private affairs, the Plaintiffs have failed to convince us that it contemplates as a core value that the government must act affirmatively to extend the benefits of marriage to any particular couple. Conversely, the State of Indiana is not interfering in the private affairs of the Plaintiffs, or infringing upon the opportunity to manage ones own life envisioned by Article 1, § 1. See Lawrance, 579 N.E.2d at 39. See footnote The Plaintiffs intimate relationships are not illegal under the laws of this State and they enjoy extensive freedom to organize their personal affairs in a manner that suits them, which encompasses the freedom to create a family unit that includes children.
There are simply too many obstacles to the Plaintiffs claim that Article 1, § 1 of the Indiana Constitution requires the State to extend to them the benefits associated with civil marriage. Our supreme court has recently indicated its current reluctance to find Article 1, § 1 to be judicially enforceable. When it has been so enforced in the past, the cases almost always concerned business or economic regulation and used what appears to be now-discredited reasoning. Additionally, no statute or regulation has been invalidated under Article 1, § 1 for fifty years. Even assuming Article 1, § 1 is judicially enforceable, the Plaintiffs do not succeed in their argument that that provision contains a core value right to enter into government-sanctioned same-sex marriages that Indiana Code Section 31-11-1-1 materially burdens. This conclusion is consistent with both the history of Article 1, § 1, and courts in other jurisdictions that have declined to find a fundamental right to government-recognized same-sex marriage. The Plaintiffs claim under Article 1, § 1 of the Indiana Constitution fails.
FRIEDLANDER, Judge, concurring in result
The lead opinion sets forth a scholarly, thorough analysis that culminates in the
conclusion the trial court correctly dismissed Appellants complaint. I am constrained by
binding precedent to concur in the result.
As the lead opinion amply reflects, the question before us is one of legality, not morality. Our conclusions on this question are thus not informed by our own personal views and opinions regarding the moral and societal issues implicated in the question before us, but instead as is always the case by our respective understandings of the law and legal precedent having a bearing on the matter at hand. In the final analysis, our votes on the question of whether the DOMA provision in question violates the Indiana Constitution turn upon only two criteria: the language of the constitution and the cases construing it. As one jurist considering this issue phrased it, [h]owever much history, sociology, religious beliefs, personal experience or other considerations may inform our individual or collective deliberations, we must decide this case on the basis of our understanding of the law, and the law alone. Baker v. Vermont, 170 Vt. 194, 744 A.2d 864, 912 (Vt. 1999) (Johnson, J., concurring in part and dissenting in part).
To be sure, the moral and societal questions presented here have far-reaching implications. Moreover, we are not writing on a blank slate. A number of our sister states either already have considered or are currently considering this question. Many have rendered opinions. Were all state constitutions the same, such cases might be of considerable persuasive value. All state constitutions are not the same, however. This case is unique, because it is the first and only one involving rights arising under the Indiana Constitution.
The moral aspects of this question are the same everywhere, regardless of the language of the particular state constitution in question. Amici is not far from the mark in observing that what is ultimately at stake in this lawsuit is the nature and purpose of human distinctions and relations [.] Brief of Amici Curiae of the Hon. Sen. Kent Adams, et al. at 19. The lead opinion and the parties to this appeal have done a thorough job of delineating the material benefits that, merely by virtue of attaining that status, devolve upon those who are legally married. Those benefits are both numerous and consequential. To deprive someone of the opportunity to attain legal marital status is no trifling matter, in that the prohibition has significant, real-life consequences. Viewed thus, there can be no doubt that the legislation in question implicates matters beyond debates about morality and historical societal preferences it operates to deprive some citizens of the privileges granted to others, based solely upon membership in a class created by the legislation.
The lead opinion correctly concludes that I.C. § 31-11-1-1 clears the low bar of constitutionality set by Collins v. Day, 644 N.E.2d 72 (Ind. 1994) for challenges arising under the equal protection clause of the Indiana Constitution. Pursuant to the Collins analysis, disparate treatment between classes is permissible so long as the treatment is reasonably related to the inherent characteristic that distinguishes the unequally treated classes. In this case, that means the prohibition against same-sex marriage is justifiable because the purpose of the DOMA legislation is to encourage responsible procreation, and same-sex couples cannot procreate through sexual intercourse. I must admit that I am somewhat troubled by this reasoning. Pursuant to this rationale, the State presumably could also prohibit sterile individuals or women past their child-bearing years from marrying. In fact, I would assume the State may place any restrictions on the right to marry that do not negatively impact the States interest in encouraging fertile, opposite-sex couples to marry. Yet, I.C. § 31-11-1-1s narrow focus is to prohibit marriage among only one subset of consenting adults that is incapable of conceiving in the traditional manner same-sex couples. Such laser-like aim suggests to me that the real motivation behind I.C. § 31-11-1-1 might be discriminatory.
It is at this point in the analysis that one might delve into the social and moral aspects of the question. Our supreme court has held, however, that we should not inquire into the legislative motives prompting such classifications. Collins v. Day, 644 N.E.2d at 80. Rather, The Collins formulation of the test of constitutionality under the Indianas equal privileges clause is as follows:
First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.
Id. Justice Sullivan observed in Humphreys v. Clinic for Women, Inc., 796
N.E.2d 247 (Ind. 2003), that, reduced to its simplest terms, Collins requires that
the class must be defined by a characteristic that is not arbitrary or
impermissible and that the difference in legislative treatment must be reasonably related to
the difference between the classes created in the legislation. Is I.C. §
31-11-1-1 reasonably related to the legislative objectives identified herein? Setting aside any
questions about the moral and societal issues implicated in this case, I must
conclude that it does.
My vote to concur in the result is premised in large part upon a recognition of the daunting burden that faced the Plaintiffs in their effort to have the DOMA legislation in question declared unconstitutional. The lead opinion capably sets out the nature of that task. I note especially that, unlike review conducted under the Equal Protection Clause of the United States Constitution, our scrutiny of the challenged legislation is not heightened under Indianas version of that provision. The opposite is true, in fact. Collins v. Day, cited liberally in the lead opinion, guides our deliberations in this case. See footnote I need not rehash that analysis. It suffices to say that the question we must decide, viewed through the Collins prism, is different than the one the Plaintiffs seek to place before us. The question Plaintiffs wish us to ponder is whether civil marriage ought to be an option available to same-sex couples in Indiana. Collins simply will not permit us to tackle that issue. Rather, we are limited under the Collins approach to considering whether there is a rational relationship between, on one hand, encouraging the goal of responsible procreation and, on the other, legislation that limits marriage to opposite-sex couples. Because same-sex couples cannot procreate as a result of physical union, they are not implicated in the question of whether a marriage between biological parents is good for the children, and consequently good for society. Thus, the ultimate question, as initially presented by the Plaintiffs, is a distant cousin of what that question becomes after it has been distilled by Collins v. Day, viz., may the State prohibit same-sex marriage becomes, will same-sex marriage promote, among other things, responsible procreation. Clearly, it would not. See footnote
As a result, the question posed by the appellants must be resolved in a different arena, i.e., by the General Assembly and the people of this State. Unconstrained by the low bar set by the equal protection clause of the Indiana Constitution, they must identify and consider the societal implications and moral imperatives involved and determine whether the prohibition is justifiable on those grounds. Focusing only upon the narrow legal question before us, I must agree with my colleagues that the DOMA provision at issue does not violate the equal protection clause of the Indiana Constitution.
Footnote: The Plaintiffs repeatedly refer to marriage and the right to choose ones spouse as a core value without clarifying that the issue before this court is whether the State can choose to bestow benefits upon one type of permanent commitment and not another.
Footnote: Lawrance cited Article 1, § 1 as a guideline in interpreting Indianas Health Care Consent Act and did not address whether that constitutional provision is independently enforceable.
Footnote: Although written only ten years ago, Collins was decided before this issue and its ramifications came to the fore nationally. In any event, we leave it to our supreme court to decide whether the significant evolution of the law in that specific area warrants revisiting the issue.
Footnote: I stress here that responsible procreation, as it is used in this narrowly focused constitutional analysis, refers only to the capability to reproduce biologically as a result of sexual intercourse between the parties in question. More specifically, it does not refer to the ability to parent a child. This court has observed more than once that persons involved in same-sex relationships can be nurturing and effective parents, and in recognition of that fact it may be in the best interest of a child to permit such individuals or couples to fill that role in the childs life. See In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004) and In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003).