DOUG ROSS: Court's answer on gay marriage raises more questions

2013-06-28T00:00:00Z DOUG ROSS: Court's answer on gay marriage raises more questionsBy Doug Ross doug.ross@nwi.com, (219) 548-4360 or (219) 933-3357 nwitimes.com

The U.S. Supreme Court's ruling on same-sex marriage, specifically the federal Defense of Marriage Act, and Indiana Gov. Mike Pence's response raise complicated questions.

I looked to David Herzig, associate professor at the Valparaiso University School of Law, for an expert opinion. Herzig hurriedly wrote a scholarly blog post on the issue after the U.S. v. Windsor ruling. Apparently my observations were on target.

So what did the ruling mean, exactly? "The answer is it's really complicated," Herzig said.

The court's ruling in the U.S. v. Windsor case rejected Section 3 of the federal Defense of Marriage Act, which defined marriage for federal purposes as being between a male and a female.

With no federal definition, that means the state definition applies. But which state's definition? The state where the ceremony was performed, or the current state of residence?

That will be an issue on any number of issues, including Social Security benefits, tax status and more.

Section 2 of DOMA was not overturned. That's the section that says no state has to recognize a same-sex marriage perfomed in another state.

Edith Windsor's lawsuit didn't touch on that aspect of the law, and the Supreme Court didn't want to touch it, either.

"Now that there's no longer a federal definition of marriage, what do we do with the way states are supposed to recognize marriages from other states?," Herzig said Thursday.

I figure that's the next big legal challenge. The U.S. Constitution's full faith and credit clause deals with states recognizing laws approved in other states.

That's what inspired DOMA in the first place.

"Congress enacted the DOMA in 1996 to pre-empt the argument that states would have to recognize same-sex unions from other states," Herzig wrote in his blog post.

State laws on marriage vary more widely than you might believe. In New Hampshire, a girl as young as 13 can get married under some circumstances. In Indiana, the bare minimum age is 15. Some states allow first cousins to marry, too.

States can define marriage however they want, unless there's a violation of civil rights. That's why interracial marriages are no longer banned anywhere in the United States. Sexual preference is not yet a federal civil right, however.

Leading Indiana Republicans, including Pence, said Wednesday they will push for a state constitutional amendment forbidding same-sex marriages. That could be put before the voters as early as Nov. 4, 2014.

But isn't Indiana supposed to be pro-business? Business executives have testified that forbidding same-sex marriages will deter recruitment efforts. Shrinking the pool of potential job applicants won't help businesses.

Why not just leave Indiana's existing mini-DOMA law in place for now and see how case law evolves?

Editorial Page Editor Doug Ross can be reached at (219) 548-4360 or (219) 933-3357 or Doug.Ross@nwi.com. Follow him at www.facebook.com/doug.ross1 and on Twitter @nwi_DougRoss. The opinions are the writer's.

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