Another Look At Morrison v. Sadler

The occasion of New York’s high court ruling against same-sex marriages presents an opportunity to revisit the Indiana Court of Appeals’ January, 2005 decision, Morrison v. Sadler, which similarly struck down any right to same-sex marriages under Indiana’s Constitution. Gay rights supporters have been equally troubled by both courts’ rulings, but there are aspects of the Indiana decision that are particularly troubling to any potentially aggrieved minority plaintiff in this state. It only confirms just how difficult the road ahead is going to be for gays seeking equal treatment under the law here and elsewhere.

The Morrison case involved several same-sex couples who applied for marriage licenses with the Marion Co. and Hendricks County Clerk’s offices and were denied licenses based upon Indiana’s Defense of Marriage Act, which defines marriage as between one man and one woman. The couples appealed their case to the Court of Appeals, arguing that the denial of their marriage licenses violated Indiana’s Equal Protection and Due Process Clauses, in addition to the core values statement found in Article I, Section 1 of the Indiana Constitution. The Morrison decision is instructive on just how much deference Indiana courts are willing to afford the legislature when faced with a discriminating law, and how narrowly Indiana courts read the fundamental rights of the individual ensured by the state’s constitution.

Like the New York decision, the Morrison court briefly touched on the federal law on the issue of same-sex marriages with completely opposite conclusions. “There is binding United States Supreme Court precedent indicating that state bans on same-sex marriage do not violate the United States Constitution,” Judge Barnes wrote, citing the 1971 Baker v. Nelson Supreme Court decision, affirming a lower court ruling by the Minnesota Supreme Court that a ban on same-sex marriages didn’t violate the 14th Amendment. By contrast, the New York court’s majority opinion said, “No precedent answers for us the question we face today; we reject defendants' argument that the Supreme Court's ruling without opinion in Baker v Nelson bars us from considering plaintiffs' equal protection claims.”

Like the New York court, however, Indiana’s court distinguished the landmark Loving v. Virginia Supreme Court decision in 1967, which struck down state laws barring interracial marriages as a violation of the 14th Amendment, from a ban on same-sex marriages. “[T]here is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex,” the court said. The court did, however, acknowledge the changing landscape in the aftermath of the Lawrence v. Texas decision, which struck down Texas’ sodomy law as a violation of the due process rights of gays. Lawrence effectively forecloses the possibility of relying upon moral disapproval of homosexual relationships as the sole justification for limiting marriage to opposite-sex couples only the court concludes.

Turning to Indiana’s constitutional protections, the court first took up the issue of equal protection under Article I, Section 23 of the Indiana Constitution. A troubling reminder of just how narrowly Indiana’s equal protection clause is construed, the court instructed us that Indiana requires no heightened or varying level of scrutiny based upon the nature of a classification or the nature of the right affected by the legislation. That places a heavy burden on any individual asserting that a state law discriminates against him or her. The federal courts and many other states, by contrast, impose heightened scrutiny of a law if it involves a suspect class or affects a fundamental right.

Essentially, Indiana applies the traditional rational basis test. This means that the legislative enactment is presumed to be constitutional, and that the burden rests solely with the plaintiff to overcome the legislation’s constitutionality. Indiana courts require the plaintiff in meeting that burden to negate every conceivable basis which might support the legislative classification. The court will not second-guess the legislative purpose behind the enactment; only whether the disparate treatment is reasonably related to the inherent characteristics that distinguish the unequally treated classes. It will, however, consider the legislative purpose as a factor supporting the rationale for supporting the disparate treatment of a class of persons. The classification itself becomes a question for judicial review only when it appears “arbitrary or manifestly unreasonable.”

That’s a very high hurdle for any plaintiff to jump over. Noting how difficult it is to prevail on an equal protection claim under Indiana’s Constitution, the court noted that of the 90 challenges with which it was familiar, only 3 statutes were found by Indiana courts to violate the equal protection clause, and 2 of those decisions pertained to the statute of limitations for medical malpractice litigants. A third dealt with a restriction on a Medicaid benefit and its impact on a woman’s right to an abortion who faced serious and permanent impairment of a bodily function if she was denied an abortion. In each of these 3 instances, the statutes were found unconstitutional only as applied to the specific litigant; no Indiana statute has ever been declared facially unconstitutional on equal protection grounds. That says a lot considering all the anti-Catholic, anti-immigrant and anti-minority laws passed during the 1920s in furtherance of the KKK’s Americanization agenda. And let’s not forget that Indiana was one of nearly 3 dozen states which enacted laws banning interracial marriages prior to their being declared unconstitutional by the Loving decision.

The New York court also declined to afford its same-sex marriage case a heightened level of scrutiny under its constitution, but for a very different reason. This was particularly odd given that the New York legislature had enacted a state civil rights law barring discrimination on the basis of a person’s sexual orientation. The New York court made a weak attempt to distinguish discrimination based on sexual orientation from that based on racism:

It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago. But the traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one.

As to whether a fundamental right was implicated, the two courts differed substantially. The New York court found plenty of precedent for the proposition that marriage is a fundamental right as concerning opposite-sex couples; it would not, however, extend that fundamental right to include same-sex couples. The Indiana court, by contrast, found that Indiana’s Constitution does not provide a “fundamental right to marry” to any couple, straight or gay. The court wrote, “To the extent that Article I, Section 1, may contain some guarantees of minimal government 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 benefits of marriage to any particular couple.” That is breathtaking statement in and of itself.

Just what are these “core values” the court is referencing? Only the most fundamental rights we have in this country and this state. Article I, Section 1 specifically reads:

WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

The court first questioned whether this highly critical part of our constitution is even capable of “independent judicial enforcement.” It noted that Indiana courts have not relied on this provision in more than 50 years in deciding a case, and when it did, the cases were mostly economic-related and based on an analysis that has since been discredited. So what is a “core value”? The court gives us that free speech is a “core value.” Open and fair access to the courts is another. That's good to know. Now we can all breathe a sigh of relief.

Assuming for the sake of argument it had determined that the right to marry is a fundamental right, the court would have still applied the same rational basis test it applies in equal protection cases. Indiana’s court and the New York court agree that procreation and promoting the stability of a family structure for children provides the rational justification for the legislature to provide marriages for opposite-sex couples while denying them to same-sex couples. Both courts agreed that opposite-sex couples can bring children into this world through impulse and without planning, leading to children being born out-of-wedlock. Their same-sex couple counterparts must take time to plan for children through adoptions or artificial reproduction. It makes all the difference these two courts explain. That's why we need these "special rights" for opposite-sex couples only.

The sole voice of moderation in the court's opinion came from Judge Friedlander's concurring opinion. He concurred in the opinion, noting that he did so "in large part upon a recognition of the daunting burden that faced the Plaintiffs in their effort to have the [law] declared unconstitutional," against what he describes as the "low bar set by the equal protection clause of the Indiana Constitution." He criticized the court's rationale for defending Indiana's Defense of Marriage Act, writing:

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 State’s interest in encouraging fertile, opposite-sex couples to marry. Yet, I.C. § 31-11-1-1’s 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 might make sense to these two courts to limit marriage to opposite-sex couples, but the legislative institution of marriage has done nothing to promote the stability of our families given that more than half of opposite-sex marriages end in divorce and the increasing number of children being born out-of-wedlock. But when you apply the standards for reviewing our laws, the legislatures can pretty much doing anything stupid they please, including limiting the benefits and privileges of marriage to opposite-sex couples, using the faulty premise that it will benefit children.