Indiana Supremes Stick To Bright Line Marriage Rule

Proponents of SJR-7 would have you believe there is a real and present danger activist judges will impose same-sex marriages on us unless we adopt a constitutional amendment. Throughout our state's history, our court's have been relatively conservative when it comes to interpreting our laws. This has been particularly true in cases involving the common law--what is truly judge-made law. A case just handed down by the Indiana Supreme Court, Smith v. Toney, is further evidence there's not a snowball's chance in hell an Indiana court will ever force same-sex marriages on the people of this state.

As the Indiana Lawyer's Michael Hoskins describes the case, "It also delves into the institution of marriage and touches on issues that could lead to larger issues in the future--from a pending marriage amendment in the legislature, same-sex couples and their adoption rights and anything not considered "analogous to a spouse." To be sure, this case had nothing to do with gay marriage. Instead, it involved the issue of whether a fiance could recover damages as a bystander of an automobile accident which claimed the life of her husband-to-be for negligent infliction of emotional distress on the theory of having a relationship with the deceased analogous to a spouse. The Supreme Court unanimously drew a bright line rule ending at marriage.

The high court offered three reasons for its holding in an opinion written by Justice Ted Boehm. Firstly, marriage affords a bright line rule. Describing the marital distinction, Boehm observed that spouses are the only non-blood relatives who are entitled to inherit by intestate succession. Conversely, cohabitating couples are not presumed to share rights in property absent an express contract or viable equitable theory, Boehm explained. He noted marriage imposes a legal duty of support. Those of you who witnessed yesterday's debate on SJR-7 will recall that issue being raised. Secondly, Justice Boehm explained how a bright line rule at marriage "avoids the need to explore the intimate details of a relationship that a claimant asserts is analogous to marriage." And finally, Justice Boehm said that limiting liability to spouses addresses the need to limit the array of persons to whom a defendant is potentially liable.

It is a one paragraph concurring opinion by Justices Sullivan and Rucker that is drawing attention, however. Of immediate concern is what the decision may portend for a future case involving gay parent adoption cases. So far the Supreme Court has left those decisions to the Court of Appeals, which has recognized the right of a same-sex couple to adopt a child under Indiana's Adoption Act. The one paragraph concurring opinion reads:

I agree that Eli Welch, the plaintiff Amy Smith's fiancé, was not in a "relationship to the plaintiff analogous to a spouse" and therefore is not entitled to recover under our Groves v. Taylor precedent. As a couple engaged to be married, their relationship had not been legally established by license or ceremony nor was it one of long duration marked by the financial interdependence, intimacy, and other characteristics of the spousal relationship. The majority opinion makes clear that Welch and Smith were not involved in a cohabiting but unmarried relationship. As such, its comments with respect to relationships other than the fiancé-fiancé relationship at issue here are unnecessary to the decision in this case and therefore not precedential.

Sullivan and Rucker appear to be trying to put such persons at ease by suggesting the case would have no precedential value in a case involving the rights of cohabiting but unmarried couples. Nonetheless, Lambda Legal doesn't like what it sees in this opinion from the perspective of unmarried gay couples. Jim Madigan told the Indiana Lawyer, "In this case, the court is basically looking to draw an unfortunate bright line that makes it easier for courts to determine who can recover." "Even if you thought this opinion is the right result, the thing that's troubling is it leaves gay or unmarried people out of the mix and in the cold when it comes to legal remedies for traumatic incidents in their lives."

One thing is clear, if SJR-7 is enacted as it is currently drafted, there won't even be a debate. While the Indiana Supreme Court relied on common law analysis in this case, the second paragraph of SJR-7 would have no doubt come into play if it were a part of our constitution. That paragraph reads: "This Constitution or any other law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups." I don't recall anyone relating the proposed amendment to tort cases, such as those involving the close survivors of a person who died as a result of a wrongful death, but I think you will begin to see that added to the discussion now.