Tuesday, January 13, 2009

Constitutional Ban on Same Sex Marriage Introduced Again

In today's paper-thin Indianapolis Star, Mary Beth Schneider reports on a new attempt at passing a constitutional amendment to ban same-sex marriage. Schneider reports that the the new proposed amendment states:
"Only a marriage between one (1) man and one (1) woman shall be valid or recognized as marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."
Previously, the amendment stated:

"Marriage in Indiana consists only of the union of one man and one woman. This constitution or any other Indiana law may not be construed to require that the marital status or the legal incidents of marriage be conferred upon unmarried couples or groups."

The change was due to past complaints that the amendment might bar businesses from granting benefits to partners of gay employees.

Of course, same sex marriages are already illegal in Indiana. Proponents want the ban enshrined in the constitution in case a court might later find the Indiana statutory ban unconstitutional.

People who know me know that I am both conservative economically but socially as well. When it comes to the issue of abortion, I am on the pro-life side not because of my religious beliefs (Catholic) but because medical science has demonstrated beyond a doubt that a fetus is a distinct, individual human being. Accepting the absolute abortion on demand position advocated by the pro-choice forces requires turning a blind eye to the realities of pre-natal life, and pretending that there is only the interest of one human being who should be considered. At some point government does have a responsibility to step in and protect that unborn human life.

But I digress. The issue of a ban on same-sex marriage is one this conservative has trouble caring about. I don't see how same-sex marriage somehow threatens the institution of marriage. I would think a heterosexual father (or mother) constantly cheating on his spouse and passing down the harm that infidelity causes to the children would be a far greater danger to the institution of marriage than the state allowing same-sex couples to be married. They, after all, should have the joy of experiencing the unpleasantry of divorce just like heterosexual couples.

I am, however, more than willing to listen to my fellow conservatives tell me why I should be concerned about the threat of same sex unioins to the institution of marriage. Begin the convincing.


Sean Shepard said...

Of course, the correct argument here is...


The state should not be legislating who individual people choose to live their lives with. If marriage is a sacred religious trust, people had best not trust government and politics to keep it so and should, thinking of Mathew 22:21, demand that Caesar give back to God that which is God's.

Let the church marry people and keep it a contract between two people, not a contract between two people and the government.

This would require changes to a lot of legislation to eliminate any special restrictions or benefits that are based on marital status, but if people are worried about government usurping the definition of religion, don't let politicians define it, let your Church.

Paul K. Ogden said...


The trouble is there iare certain legal benefits that society has given to married couples and certain protections. For example, the law says that H can't completely disinherit the W when married. So if H meets some money-hungry floozy, he can't simply draft a will and disinherit her.

Same with property. In Indiana, married couples hold their properties as tenants in the entireties. H can't simply, on his own, deed away his share of the couple's property. Again, that's a legal protection afforded.

And of course you have additional legal protections to someone who has decided to get married and had a child rather than someone who simply shacked up and have a kid.

I like those laws. I think there should be legal protections associated with marriage. There is a reason why all 50 states legally recognize and give effect to the marriage contract. The nuclear family is the cornerstone of our society. I see nothing wrong with government protecting those who choose to enter into that contract.

So while I do see a need for society to protect and nurture marriage, I don't see the devastating effect on the institution of marriage if the marriage of same-sex partners is also recognized.

Sean Shepard said...

Paul, there is nothing there that can't be handled by contract law and other evidence if necessary.

The government has no role in this and historically, prior to the mid 19th century really had none.

I understand the things you mentioned, as evidenced by my comment that there are lots of other laws that would require some changes but disagree that statist policies are the only solution.

Let government deal with contracts between individuals, MAYBE, if we must, treat everyone under a "civil union" heading and then "marriage" can remain the religious institution.

Get government out of it so we can spend time arguing about things that are the proper role of government, like not intervening in and destroying our economy. ;-)

Anonymous said...

Religion does not condone homosexuality-I could care less about personal preferences, living arranements and the contracts they enter into, but I do have a problem with them wanting to force me to support their lifestyle by destroying our belief system and substituting theirs through legislation. I see no logical reason for same sex people to marry except to advance agendas which change the basics of our society.

varangianguard said...

That's a specious argument, Anon.

Nobody is destroying your belief system by being gay.

Patriot Paul said...

I agree with Sean. Despite the government perks associated under traditional marriage with big brother intanglements of taxes, IRA contributions and assorted other taxes that discriminates singles from married couples, the matter should not be legislated by the State, but by norms within society (church,chapel,etc.), regardless of who gets benefits or lack thereof. If everyone agrees traditional marriage has nothing to fear from gay marriages, and does not threaten straight people to suddenly annul their vows, then only government stands in the way of reform. Since we all seem reform minded these days, let's prove it by stripping our government of State sponsored intrusion into personal marriage vows.

Anonymous said...

Variangianguard :Clarify: Okay, go ahead and nit pick-Belief system- religious and a revamp of government structure to accomodate those that are homosexual. That combined with those that want to dismantle our basic tenets to put in place________ (fill in the blank) The wanting of a constitutional ban is in direct response to the demand to marry. Example: California-even though the majority voted against homosexual marriage- judges etc are circumventing that vote. So there is the reason for a Constitutional Ban. The majority has spoken.

Paul K. Ogden said...


Unless you expect every married couple to enter into a pre-nup, which I don't think is realistic, a spouse could be disinherited without the law allowing a spouse to take against the will. Same goes with a spouse giving away his or her share of marital property without the other person's approval. There are a lot of other things I could think of if I set my mind to it.

While I think a pre-nup is good for many couples, in particular those who marry later in life and have substantial disparity in wealth, I don't want to see them be the norm in every marriage. For every marriage to be accompanied by a lengthy legal contract, enforceable in court, totally undermines your argument about the state should not be involved in marriage. When you have matters that are subject to a contract, that's getting the state involved...and in a big way.

Sean Shepard said...

But wait a minute. We expect them to file with the state and pay a license fee but we wouldn't expect them to, maybe even for free, sign a standard civil union arrangement? Does not filing with the state effectively put in place a standard "prenup" without modification by default?

This would seem to be a pretty minor change. Another point would be ensuring that couples utilize methods already in place to ensure protection of common property (like having a house or banking accounts in both names).

Why not expect people to protect their assets in writing. Certainly, you recommend everyone have a will, yes?

I want government out of it so we can all move on. Besides, many are just bypassing the system anyway as many men are now jumping from woman to woman to temporarily plunder their more gainful employment status.

There are other solutions, we just need to open ourselves up to change.

Anonymous said...

Well Varangianguard (Abdul) for someone who went from Muslim to agnostic your opinion matters about as much as asking a blind man which tie matches your Leon's tailored suit..I'm just sayin,...

Pete Boggs said...

Wasn't the excuse government originally used to sanction marriage, a concern about familial inbreeding (like Kentucky... just kidding I'm an IU fan) or something along those lines? Considering definitions for a moment (also relied upon in the profession of law); there is no such thing as "same sex" marriage if we speak or share a common language rather than qualified, language code. Marriage is a husband & wife, remember? This is not to disparage the Constitutionally protected rights of same sex couples or their unions, but rather to appreciate the value of common language. If gay is a distinction, why borrow from the traditions of heterosexuals? The term "gay" does assume a "norm" or baseline contrast with heterosexuality. At a dinner party one evening, I jokingly suggested to gay friends, that in contrast with their orientation, me & the Mrs. were gay- they laughed but acknowledged the point. Extending the term marriage to same sex couples diminishes common language & the distinction for people of either orientation. The term union better applies to same sex couples who should enjoy the same Constitutional rights (and therefore contractual) as married folks; as they have the same rights to associate (or not). All that said, SS asks a good question, "What business is it of government?" And, what business does govt. have, taking public dollars to fund very private abortions?

varangianguard said...

"our basic tenets", you mean "your basic tenets". You are projecting. People who are GLBT have no fewer Constitutional rights than you do. That isn't decidable by a simple majority rule. And, 52-48% is not a resounding rejection either, btw.

And for the record, I'm not Abdul. Snarky, yes. But, not connected with the media in the slightest. Still, from my perspective, fairly amusing.

Anonymous said...

Paul, the problem is that this is a gateway matter. If fruits are allowed to marry, that establishes legitimacy of the lifestyle, demanding corrective action in all public organs for years of suppression and our barbarism.

As atonement in our "enlightenment," we will be forced to recognize holidays for fruits, name streets and buildings after notable fruits, for no greater reason than their fruitiness; bombastic historical fruits will be elevated to the status of great civil rights leaders; we may see a fruit holiday, and we will definitely see public school curriculum go hog wild in creating fruit awareness weeks, fruit history month, and every school textbook will be revised, pursuant to education policy, of course, to be "inclusive," displaying fruit couples in equal rank with hetero couples.

Keep the fruits from getting married, if you want to keep this country from collapsing. We're on the way out; fruit marriage will only hasten it.

Diana Vice said...

On a related subject, why should anyone need a permission slip (license)from the nanny state to get married? Government bureaucrats try to regulate and control everything by requiring a license, and it's simply not the proper role of government. Bureaucracy tends to muck things up, so we need less of it, not more. Society didn't crumble years ago before the requirement of a license was legislated into existence. Marriage was a function of the church, and rightfully so, because marriage was instituted by God; therefore, it's only right that we should obey His rules when it comes to marriage.

Same sex marriage is against God's rules, and this angers some in society. I tell them to take it up with Him, not me.

Personally, I don't care what others are doing in the privacy of their homes. It's none of my business, and I don't have to answer for anyone else's sexual conduct. Heterosexuals break God's rules all the time, too, so this isn't a condemnation against homosexuals. I have homosexual friends and relatives, so please don't resort to calling me a homophobe or a hate monger, because neither would be true.
This is just my honest analysis that anyone is free to politely disagree with. Anyway, back to my point.

The licensing industry in our state is a booming business for the bureaucrats, and there's always a licensing fee involved.

Here's an interesting scenario that I'll share for the purpose of making another point, but since it involves a close friend, I'll change the names to protect the innocent. I'll call my friend "Jack" and his partner "Jill" as I relay some of the details from a messy "divorce" case currently pending in the Tippecanoe County court system.

Jack is a libertarian-minded Christian conservative, and he had a real problem with submitting to the authority of the state when it came to getting a marriage license. He found a pastor who was willing to marry he and Jill without a license. For the past 15 years, Jill has used Jack's last name, filed joint tax returns, benefitted from Jack's health insurance policy, and presented herself as Jack's wife in every way possible. They considered themselves to be husband and wife in every sense of the word, and their two kids also believed their parents were "married". More importantly, though, they believed that God considered them to be married. They accomplished all of the above without a permission slip from the nanny state.

One day, Jill decided she wasn't happy with Jack, so she filed for divorce. There was never a legal question about the validity of their marriage until Jill raised one after she found out that she may have to share the profits from a lucrative business that she considered to be hers (even though Jack gave her the start-up money from his pre-marital assets). Prior to Jill's revelation that they were not legally married, no one ever checked for a valid license, and the case would have proceeded as a regular divorce situation had it not been for the fact that Jill got a little greedy. New legal issues arose. If they didn't have a marriage license, were they really married? If they weren't really married, how could there be a divorce? Did Jill commit fraud by filing a joint tax return or enjoying the benefits of Jack's health insurance? Of course, Jill considered herself Jack's wife when it benefited her. She certainly thought she was entitled to a portion of Jack's 401K.

It seems the court is handling the matter as a separation of assets situation rather than a divorce. That seems simple enough, I suppose.

So what's my point? I guess I'm wondering why we're making all the fuss when the obvious solution would be for the government to get out of the marriage business entirely. All other matters, such as the separation of assets, can be resolved whether there is a valid marriage license or not.

Indiana's laws are already such that homosexual couples cannot marry, but they're certainly not prevented from forming a legal partnership, similar to that of my friend and his ex non-spouse. Many homosexuals are actually getting health insurance coverage through their partner's employers, although I think that's discriminatory toward heterosexual couples who choose to co-habitate. Homosexuals can certainly do what my friends did, and say vows if they feel the need to. Why do they need permission from the state to do that?! Why does anyone need permission to do so?

Sorry for the length of this comment post. It's not an easy subject to discuss and I may have been a little off point, but since Paul asked for feedback from his conservative friends, I thought I'd oblige.

Paul K. Ogden said...


Getting ready to leave for the office. Afraid I don't have time to answer all your questions.

Indiana does not recognize common law marriage. So it doesn't matter if they lived together as husband and wife, if they didn't get married (with a marriage license) they aren't married.

Normally the rule of thumb would be a split of the business 50-50, if they were married. Because they weren't married, splitting the business up becomes much more problematic and depends on an assortment of factors.

Yes, they could well have committed tax fraud if they were not legally married but claiming to the IRS they were.

Not every legal protection afforded married couples could be conveyed by contract between gay couples. For example, a married spouse can't be disinherited in Indiana. They get at least 1/3 when the spouse dies. Called "taking against the will." That's something you couldn't really contract for. There are others as well

Pete Boggs said...

The sanctity of marriage shouldn't be state sanctioned or thereby reduced to a mere tax distinction.