Another Step Back

Following in the wake of a federal court's decision to uphold the Defense of Marriage Act, the great state of Indiana has given us another step backwards in the fight for equality. In Morrison v. Sadler, an Indiana Court of Appeals has upheld that state's own Defense of Marriage Act. Unlike the other two recent DOMA cases, Wilson v. Ake (the federal court case) or In re Kandu and Kandu (the bankruptcy court case), however, this case is logically atrocious. The case frames its discussion thus:

"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 State's 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."

This framework is wholly illogical. No one group is particularly likely to satisfy the entire array of "state interests" outlined by Indiana. This is especially so considering the manner in which the court defines the state's interest, which seems tailor made to exclude homosexuals. The court emphasized that it is far easier for heterosexual couples to have children, and therefore the risk of them doing it without considering the situation fully is far greater. Marriage thus offers an incentive for these groups to stay together. Homosexual couples don't need that incentive because "those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes." However, there are many responsible heterosexual couples who need no such incentive to stay together, they are not "promot[ing] all of the...state interests" either. When the state endeavors to prevent a certain group from receiving a benefit (especially when it is "similarly situated," as hetero- and homosexual couples who might desire children are), it must at the very least show why the restriction is based on some legitimate interest. The state has no interest in denying the benefits of marriage to homosexual couples who might, now or in the future, wish to raise children. But by recasting the standard as whether homosexual couples could meet every single situation the state may have had in mind when drafting its marriage laws, the court manages to dodge this obvious point of justice in order to justify its discriminatory practices. As Michigan Law Professor Catherine Mackinnon notes:

"[T]o require that one be the same as those who set the standard—those which one is already socially defined as different from—simply means that...equality is conceptually designed never to be achieved. Those who most need equal treatment will be the least similar, socially, to those whose situation sets the standard against which one’s entitlement to be equally treated is measured."

Furthermore, the standard, as articulated, is a motivator for bad behavior. The argument of the court is essentially that heterosexuals deserve special privileges because without them they are more likely to abandon their children. This, once again, raises Oxblog's question: which side is really degrading marriage? Indiana is prohibiting homosexual couples from getting married not in spite of the fact, but because of the fact that they are more likely to stay together and support any children that are the product of their relationship. Heterosexual couples are afforded the privileges of marriage apparently because of their tendency to philander and break up relations at the drop of the hat (though the national divorce rate seems to suggest they can do that even with the "stabilizing" influence of marriage).

Finally, the court's argument fails on its own terms, because it mischaracterizes how the state's interest in promoting familial stability is achieved. If a couple gets married, and then divorces the next day, the state has not achieved its goal of a stable family. The point isn't entering the relationship (indeed, any time two people decide together to either have a child or have sexual intercourse, they have entered a "relationship"), it's maintaining the relationship. And once one gets past the threshold of entering the relationship, the likelihood of the relationship staying together is not much different for hetero- and homosexual couples. Indeed, the social stigma that is implicit in legal codes that categorically refuse to recognize the value or worth of homosexual couples staying together could easily act as an incentive for them to break up. This would suggest that Indiana is actually hampering its own objective by restricted same-sex marriage. If Indiana is concluding that, without proper incentives, couples with (or expecting) children are at risk of breaking up, then it needs to equally provide a remedy to all in that situation, not just some.