RUTH MORRISON, et al., Appellants-Plaintiffs, vs. DORIS ANN SADLER, et al., Appellees-Defendants.





PRIOR HISTORY:  Appeal from Indiana Court of Appeals, Second District Docket Number No. 49A02-0305-CV-447  Date Filed: January 20th, 2005 DISPOSITION: Affirmed.


COUNSEORLS: For the Appellant(s): Austin M. Rainwater, Walla Walla, WA.

For the Respondent(s): Adam R. Maldonado, Washington, DC.

JUDGES: Authored by Kevin McNellis and Nicole Brener-Schmitz, with Jim Hanson joining.




















            The counsel for the appellants represents three different homosexual couples, Ruth Morrison and Theresa Stevens, David Wene and David Squire, and Charlotte Egler, who wish to challenge the ruling of the Indiana Supreme Court, which they feel failed to correctly apply sufficient scrutiny in its ruling affirming the Indiana Defense of Marriage as well as Indiana statute 31-11-1-1.  These laws in conjunction stipulate that any valid marriage will be limited to the unions of a single man and women.  All three of the couples, however, have been granted a civil union in the state of Vermont in hopes of gaining some of the benefits granted to married heterosexual couples within the state of Indiana, where they currently reside.  This Court has decided to hear this appeal to determine the Constitutionality of the Indiana statute in question.



Justice McNellis with whom Justices Brener-Schmitz and Hanson join


            After a careful analysis of the competing arguments presented by both the Appellants and Respondents, the Court vacates the ruling of the lower Indiana Supreme Court on the grounds that its ruling violates the Equal Protection of the Fourteenth Amendment.  Additionally, the ruling does not apply the proper degree scrutiny in its analysis of the appellants’ arguments.  We are fully aware of the potential implications of our ruling, but we feel that the law in question so flagrantly violates the United States Constitution that it must be overturned.  As such, we categorically reject the respondents’ assertion that “the Indiana Supreme Court showed no error in evaluating Indiana Code Section 31-11-1-1 (a) in their application of the rational basis test as well as their enumeration of the legitimate, compelling state and legislative interests underscoring the statute’s constitutionality” (Respondant’s Brief, p.3).  Since the Indiana Supreme Court has failed to do so, it has now become our responsibility to examine this law with a correct lens of judicial scrutiny and proper constitutional understanding. 

            We agree with the respondents’ claim that the Indiana Court failed to correctly apply the rational basis test given the exclusion of certain sexual orientation classifications, which demand the highest standards of strict scrutiny.  In Frontiero v. Richardson, 411 U.S. 677 (1973), this Court wrote that “we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.”  Therefore, in order to uphold the Indiana statue in question, this Court must find that this law both protects a compelling state interest and does so in a way that is the most narrowly tailored to achieve its explicit end.   

            We shall address the validity of the compelling state interest first.  In the crux of its decision, the Indiana Court stated: “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 of marital procreation.  If it would not, then limiting the institution of marriage to opposite-sex couples is rational and acceptable.”  The counsel for the state of Indiana claims it is protecting the compelling state interest of ensuring that children are raised in a home with two parents, one male and one female, who are both committed to each other in matrimony.  Additionally, counsel for the Respondents also argued that the benefits of marriage combine to create a powerful incentive for males and females to marry and then procreate.  We, however, cannot agree with such an argument for several reasons.  The biological urge to have children is as old as humanity itself and will continue unabated with or without the exclusive sanction of the state.  The Indiana lawmakers responsible for this law’s creation are mistaken in their linking of the biological process of procreation and the cultural institution of marriage, which the history of American jurisprudence has kept separate.  In Skinner v. Oklahoma, 316 U.S. 535 (1942), the Supreme Court held that “marriage and procreation are fundamental” to the lives of citizens, but this does not mean that the one is necessarily requisite for the other.  Couples, whether married or unmarried are free to choose whether or not they want to give birth to and raise children.  In fact, the Supreme Court has steadfastly rejected any legal attempt to enforce procreation between married couples.  In Griswold v. Connecticut, the state of Connecticut attempted to ban the use of contraceptives, even for married couples, in hopes of increasing marital fidelity throughout the state.  The Court found the law unconstitutional because it extended the powers of the state far beyond its permissible reach.  In the majority opinion, Justice William O. Douglas wrote:  “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?  The very idea is repulsive to the notions of privacy surrounding the marriage relationship” Griswold v. Connecticut, 381 U.S. 479 (1965).  From a strictly legal perspective, the bonds of marriage do not carry with them any burden for husband or wife to procreate.  The right to create children exists independent of the right to marry.  This Court cannot accept this idyllic and naïve conception of marriage as an incentive as a state interest that satisfies the test of strict scrutiny.  Whereas the religious organizations are free to burden the martial relationship with the obligation to create children, the state cannot.

            Now we will address the second part of the strict scrutiny test, which the Indiana statute similarly fails to meet due to its sweeping exclusion of martial rights.  To say that this statute is narrowly tailored would be misleading at best.  On the face of it, the primary effect of this law is the explicit exclusion of homosexual couples from the possibility of marriage, which differs wildly from the government’s stated goal of encouraging heterosexual family structures.  Since this exclusion is occurring with out any supporting governmental purpose, except maybe the appeasement of various voting constituencies, the law must be reappraised so that it can meet the strict scrutiny criteria.  The Indiana legislature is free to encourage whatever type of family structure demanded by its constituents, but it cannot do so by excluding a particular class of citizens without a compelling interest.  Although we are not a policy organ of the government, we would look much favorably upon incentives aimed at heterosexuals rather than walling off the institution of marriage to specific groups within Indiana society.  Currently, the state of Indiana, by limiting marriage to one man and one woman, is creating a far too broad restriction to accomplish its stated goal of promoting traditional family structures.  Rather than excluding homosexuals from marriage, the state could increase the incentives given to heterosexual couples to conceive and rear children together.  The state also fails to explain allowing homosexuals to marry will diminish the existing incentives given to heterosexuals. Until these two problems are sufficiently remedied, the current form of the statute cannot stand.

Beyond failing the test of strict scrutiny, the Indiana statute violates the guarantees of the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  These homosexual couples are being denied their due process because they are being excluded from the protections afforded to married heterosexual couples solely on the basis of their sexual orientation without any alternative protections such as similar to Vermont’s civil union designation.  The Indiana statute also violates the Equal Protection Clause because of its discrimination of homosexual couples simply because they do not share the accepted sexual preferences of the majority of the state’s citizens.  This is despite the fact that they nevertheless enter into analogous relationships to those created by the institution of heterosexual marriage.  Therefore, not only must the state of Indiana further a compelling state interest within the bounds of strict scrutiny to deny this right, but it must also do so within proper legal avenues laid out by the Fourteenth Amendment.  We have shown how they have failed to provide sufficient credence to the governmental interest, and we will now explain how the state of Indiana is also violating the fundamental tenets of the Fourteenth Amendment.          

On this issue regarding the Fourteenth Amendment there is clear, unequivocal precedents that countermand the Indiana Court’s decision.  In Meyer v. Nebraska, Justice McReynolds accurately described the scope of the Amendment, declaring that:

Without doubt [the Fourteenth Amendment] denotes not merely freedom from bodily restrain but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy these privileges long recognized at common law as essential to the orderly pursuit of happiness by free men Meyer v. Nebraska, 262 U.S. 390 (1923).


In short, the Equal Protection Clause is the essential mechanism in protecting the right of personal liberty and pursuit of happiness that together are the foundation for our entire structure of government.  All the privileges enumerated by Justice McReynolds, save the ability to marry, have been extended to include homosexuals, and we are not dissuaded from extending the penumbra of rights of the Fourteenth Amendment to same-sex marriage.  If this Court is to take seriously its mission as being the final judicial arbiter of the Constitutions and the freedoms it protects; we must conclude that it is time to extend that the privilege of matrimonial liberty to equally to homosexuals as well as heterosexual unions.  If we fail to do so, we will be denying homosexuals across the nation from achieving their constitutionally protected right to seek happiness.  Opponents to this extension often claim that the type of exclusionary laws already meet the standards of the Equal Protection Clause since they apply to both homosexuals as well as heterosexuals equally.  Justice Scalia dissenting in Lawrence v. Texas, wrote that the anti-sodomy statue in question, “applie[d] equally to all persons.  Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex” Lawrence v. Texas, 123 S. Ct. 2472 (2003) (Scalia, J., dissenting).  The corresponding majority opinion, however, ruled that although Scalia maybe right, the law was nevertheless aimed particularly at homosexuals.  As a result, “when a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause” (ibid. concurring).  There exists a higher standard when a law discriminates, and although it may discriminate equally that is not sufficient justification under the federal Constitution.    

Just as in the Lawrence decision, the Supreme Court has invalidated equal protection defenses similar to those raised by Justice Scalia specifically in regards to marital exclusion.  The case Loving v. Virginia, which dealt with the prohibition of interracial marriage, provides an excellent of example of how the Indiana Supreme Court is making the mistake of failing to adequately apply both the appropriate standards of review and proper understanding of the Fourteenth Amendment in this case, which excludes persons from marrying on the basis of sexual orientation rather than race.  The Virginia statute prohibited the marrying between persons of different races in order to “preserve the racial integrity of its citizens and prevent the corruption of blood” Loving v. Virginia, 388 U.S. 1 (1967) citing Naim v. Naim, 197 Va. 80, S.E. 2d 479.  Just as in the Indiana case, the lower Virginia court in Loving only applied the lowest form of the rational basis test, the lowest possible standard of review. The defenders of the Virginia statute challenged in Loving also used arguments remarkably similar to those advanced by Justice Scalia in defending the Texas anti-sodomy law; they claimed that the “miscegenation statutes punish equally both the white and Negro participants in an interracial marriage, and despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race” Loving v. Virginia, 388 U.S. 1 (1967).  The Indiana Court would do right to follow the historical example of the Supreme Court, which in 1967, rejected the race-based exclusion defense stating that “the fact of equal application does not immunize the statute from the very heavy burden of justification” (Ibid).  Specifically related to homosexual exclusion, Justice O’Connor wrote that “when a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause” Lawrence v. Texas, 539 U.S. 558 (2003).  If this “more searching form of rational basis review” that was applied in terms of racial exclusion in Loving is applied in this case considering how certain citizens are being excluded from marriage as a targeted class of homosexuals, logic dictates that we vacate the ruling of the Indiana Supreme Court.        


Justice Brener-Schmitz with whom Justices McNellis and Hanson join

In rejecting the Indiana statute before us, this Court finds that marriage is a fundamental right and may not be denied on the basis of sexual orientation.  This Court has found the “the right to marry is of fundamental importance for all individuals” (Zablocki v. Redhail, 434 U.S.S. 374) and that marriage is one of the “basic civil rights of man” (Skinner v. Oklahoma, 316 U.S. 535).   The fact that marriage traditionally has not included same sex couples follows a similar line of logic that we rejected in Loving v Virginia 388 U.S. 1, in regards to an anti-miscegenation statute.  The kind of logic that gave birth to the current Indiana statute and the Virginia statue a generation ago dictates that if any group is discriminated against, it could be continually discriminated against simply because it had been in the past.  As such, Respondent’s argument is wrong that same-sex marriage cannot be declared a right because in order to be considered fundamental it must be “deeply rooted in our nation’s history” (Respondent Brief, p.4).  The role of this Court is not to maintain the social practices of 1787, but rather to ensure that the rights that are created and protected by the Constitution and its subsequent amendments are protected in contemporary society.  If we affirm that marriage is a heterosexual privilege and not universal fundamental right, we would be effectively saying that any group that has been historically discriminated against should continued to be excluded simply because they have been in the past.  We refuse to endorse any such argument with those implications.  Rather, we affirm the long American tradition of extending rights to those who have historically been disenfranchised.  The Fourteenth Amendment itself was ratified to specifically protect the rights of tens of thousands African-Americans freed from their centuries long enslavement.  Just as Loving invalidated racial classifications of exclusion based on previously acceptable forms of prejudice, we now remove any exclusion of citizens from marriage on the basis of their gender and sexual orientation in hopes of removing the overt as well as implicit discrimination against homosexuals that has been and is a part of American society.  It is our hope that in remanding the Indiana Defense of Marriage Act that we will be able to more fully accomplish the ultimate goal of the Fourteenth Amendment.

The amendment states “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The equal application of the law requires that no citizen be denied this and a ban of same-sex marriage would violate the amendment.  The equal protection of liberty regardless of appearance, gender, religion, belief, or sexual orientation is inherent in the Fourteenth Amendment as it states, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Indiana statute is in clear violation of the Fourteenth Amendment by repelling this rights to citizens who wish to engage in the institution of marriage with someone of their own gender.  This court would be causing people to “suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.” (Zablocki v. Redhail, 434 U.S.S. 374) 

Denying marriage is harmful on different levels.  Clearly, allowing this statute is harmful to our nation as it is unconstitutional.  It is also harmful to our nation as it is mentally harmful to the people it prohibits from engaging in the act of marriage.  A study from the National Sexuality Resource Center has found that there is psychological and social harm from being denied the right to marry.  It causes mental distress of being a second-class citizen or minority stress, which is “the psychological effects of constant discrimination that bars individuals from the legitimate means of achieving goals that are valued by the society in which they live” (“Sexuality Research and Social Policy” Journal).   The study found “marriage denial is shown to heighten the risk of social isolation and depression” (“Sexuality Research and Social Policy” Journal).  It also documented that “married individuals have better mental health, more emotional support, less psychological distress, and lower rates of psychiatric disorder than the unmarried.” (“Sexuality Research and Social Policy” Journal).  Much of this is due to recognition of the relationship and benefits that accompany marriage in our society such as inheritance, insurance, and the power to make medical decisions on behalf of an incapacitated spouse. To bring such psychological stress and trauma to individuals by denying them a fundamental right of our nation is not allowing them their “pursuit of happiness” (Declaration of Independence). This is to be applicable as it is an unalienable right which is to be applied equally to all.

Banning same-sex marriage engages in legal decision making that would undermine our very legal system. If one is to take marriage away from a certain group, in an instance in which there is clearly no harm done from the marriage occurring, then what is to stop us from continuing down this road?   What rationale would prevent the Court from revoking interracial or intergenerational marriage?  To argue that same–sex marriage does not provide a family environment or be what marriage is all about, can lead to turning down other types of marriage, since they are not whom this court believes should be able to marry.  If an older woman, who is unable to have children, marries a young man, who is, should they not be permitted to marry because they will not have the potential to procreate?  The court needs to understand that same-sex marriage is not a moral issue, but a civil rights issue involving equal treatment and nondiscrimination.


            We realize that this decision will cause a large controversy throughout the nation, but we cannot let the ruling of the lower Court stand for the reasons mentioned above.  The process of extending the rights personal freedom in a liberal political order, however, has never been accomplished easily or without contention and strife.  The abolishment of slavery cost tens of thousands of lives and immeasurable suffering, as well as nearly dissolving our republic in the process.  Extending civil liberties to those African-Americans freed after the Civil War was only accomplished through decades of struggle and continuing oppression; culminating with the mass protests of the 1960s.  Similar struggles were undertaken by women, who were not enfranchised until the 1920s; Native Americans, who are still struggling after two centuries of state sanctioned discrimination to obtain their bona fide treaty rights, and currently homosexuals across America, after living for generations in fear and prejudice, are standing up and demanding similar recognition.  In nearly everyone of these struggles, it has been the opinions of the judiciary that have proved to been the decisive factor in ensuring that the legislative and executive bodies of both the state and federal government follow the principles of personal liberty that gave birth to our nation, despite the countervailing popular impulses.  Without Brown v. Topeka Board of Education, the civil rights struggle may not have been successful, and in California v. Arizona, the Supreme Court helped strengthen the rights of Indian tribes to a historical high in the 20th century.  We feel that this case presents this Court with a similar opportunity.  Our critics will no doubt scream of our “judicial activism.”  Such a phrase, however, is a misnomer because we are not laying out any specific course of action, but are instead exercising our right to judicial review to remand illegitimate laws and hold the government accountable to its found principles.  The fact remains that despite our formal declarations of equality, the Fourteenth Amendment still does not measure up to its potential.  No longer will homosexuals be treated as second-class citizens under the eyes of the law.  Today this Court must now guarantee that justice will make no longer make a distinction based sexual orientation in the hopes that one-day that all American citizens will enjoy a condition of substantive equality of privileges and rights under our Constitution.  

It is so ordered.