Legal Scholar Warns Not To Be Comforted By Carswell Decision

A key concern of some opponents to Indiana's SJR-7, the proposed constitutional amendment to ban same-sex marriages and the recognition of other legal incidents of marriage for unmarried couples, is that the broad reach of its ambiguous language could invalidate portions of the state's domestic violence laws which benefit unmarried couples, both gay and straight, who live together as spouses. Lower court decisions in Ohio, which invalidated that state's domestic violence laws for unmarried couples, were offered as evidence of this so-called "unintended consequence." The Ohio Supreme Court recently overturned those lower court decisions in Ohio v. Carswell, determining that the broad language of Ohio's gay marriage amendment was not implicated because the state's domestic violence law did not confer a legal status upon unmarried couples as contemplated by the gay marriage amendment. The religious right was quick to jump on the decision, accusing Indiana's opponents of SJR-7 of making a specious argument all along. A legal scholar thinks otherwise of the decision.

Hoffstra Law School Professor Joanna Grossman in a recent FindLaw article reminds us that the unintended consequences of these amendments are a real and present danger. As Grossman notes, the first sentence of Ohio's amendment accomplished the two-fold purpose of preventing the state from recognizing same-sex marriages under Ohio law or any other state's law. "In the second sentence, Ohio's voters went even further, by also prohibiting the state from recognizing any status for unmarried individuals that approximates 'the design, qualities, significance or effect of marriage,'" she writes. "Other states have similarly targeted civil unions with their amendments," she added, [b]ut Ohio's amendment is unusual in that its broader reach is not limited to same-sex relationships." "Rather, by its own terms, it applies to all 'unmarried individuals.'" The second paragraph of Indiana's SJR-7 is similar in that it also applies to "unmarried couples or groups."

While Grossman hails Carswell as "good news", she laments the fact that the case got this far. She blames the broad language of these amendments, which go well beyond the mere recognition of marriage for same-sex couples for the legal uncertainty. "[T]hese laws are historically unprecedented -- particularly to the extent they seek to reach beyond marriage to all forms of legal recognition," Grossman writes. "Moreover, these laws are in many cases poorly drafted, and likely to produce unintended consequences - such as the trial court's initial acceptance of Michael Carswell's argument that the amendment prevented his prosecution," she adds. She goes on to provide this blunt warning:

The intended consequences of such laws - to systematically deny rights to gays and lesbians based solely on animus against them - are bad enough. Their unintended consequences only pour salt into the wound these amendments create. Voters and legislatures should be cautious lest they discover that they have allowed irrational fear and hostility to menace the integrity of their state codes and constitutions.

Indiana's religious right is already using the Carswell decision to undermine concerns about the second amendment of SJR-7, which does more than bar same-sex marriages. "This decision should put to bed the specious argument that a marriage amendment precludes domestic violence protections for unmarried couples," Jim Bopp said the same day after Carswell was decided. The American Family Association of Indiana has all but called SJR-7's opponents liars for raising the concern. "This was big news for Hoosiers because almost every major newspaper in Indiana had erroneously editorialized that Ohio spelled doom for unmarried victims of abuse if the Indiana General Assembly passed SJR 7," the AFA's Micah Clark wrote. "That is why I sent our news release to this list explaining that this ruling killed the boogie man used by same-sex marriage supporters to scare key legislators into backing away from voting for the Marriage Protection Amendment (SJR 7)." That's not all he did. Clark's group took out a full-page ad in Rep. Terri Austin's district telling her "Now you can dry your tears", a reference to her tearful explanation for voting against SJR-7. "Now you can keep your promise to protect marriage," the ad declared, citing the Ohio court decision.

Again, Indiana lawmakers should ask the proponents of SJR-7 why they won't limit their amendment to the first paragraph if their only intent is to ban the legal recognition of same-sex marriages in Indiana, which is already prohibited by a state law which has been affirmed as constitutional by the Indiana Court of Appeals? They won't because they fully intend to accomplish more with their amendment than ensure that same-sex marriages are never recognized in Indiana.

Hat tip to Indiana Law Blog.