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Gay marriage controversies: Indiana University professors comment

FOR IMMEDIATE RELEASE
Nov. 20, 2008

Indiana University experts on law and sociology of the family discuss the following issues related to the same-sex marriage debate in the United States, stoked recently by state-level developments in California, Connecticut and Arkansas:

Demographic trends point to acceptance
Patchwork of state court decisions
How America treats gay couple

Acceptance inevitable despite legislative back-and-forth. Dramatic advancements and setbacks at the state level concerning same-sex marriage provide a sense of legislative "whiplash," in America, says Indiana University sociologist Brian Powell. But Powell, who specializes in sociology of the family, says the momentum ultimately is behind acceptance of same-sex marriage because of demographic trends. National surveys, he notes, show that younger Americans are opposed to gay marriage bans and more accepting of same-sex relationships. Powell said the same arguments used to oppose interracial marriage, which was illegal in many states prior to the 1967 U.S. Supreme Court ruling in Loving v. Virginia, are used today to oppose gay marriage -- with one twist. "Proposition 8, which banned same-sex marriage in California, was supported in the black and Latino communities," Powell said. "African Americans are opposed, yet the whole debate about same sex marriage is virtually identical to the debate about interracial marriage. Black voters who supported the proposition are ultimately 'in bed with' the people who would have been opposed to interracial marriage."

Powell is the James H. Rudy Professor of Sociology at IU Bloomington. He can be reached at 812-855-7624 and powell@indiana.edu. Top

A patchwork of state court decisions. Daniel O. Conkle, the Robert H. McKinney Professor of Law at the Indiana University School of Law--Bloomington, said same-sex marriage is likely to remain subject to a patchwork of state court decisions for the foreseeable future. "Developments in state law may eventually support the recognition of same-sex marriage as a matter of federal constitutional right, but we're nowhere close to that yet," Conkle said. "State law developments are relevant to federal Constitutional law because the Supreme Court sometimes invokes national societal values, as reflected in state law, as support for its Constitutional rulings," he added. "In 2003, for example, the Court ruled that criminal sodomy laws are unconstitutional under the Fourteenth Amendment. The Court held that the Amendment protects the right of consenting adults to engage in private sexual conduct, including homosexual conduct. In so doing, the Court cited an "emerging awareness" concerning the proper scope of personal liberty and stated that "our laws and traditions in the past half century are of most relevance here." The Court noted that a substantial majority of the states had acted during the last half century to repeal laws that previously had criminalized consensual sodomy, and that this trend supported the existence of a national consensus and therefore a federal constitutional right.

"Years from now, similar reasoning might support the recognition of a Fourteenth Amendment right to same-sex marriage, but that would require a trend of state law decisionmaking suggesting a national consensus favoring this right. As of now, there is no such trend and no such consensus," Conkle said. "Of course, the Supreme Court might recognize a Fourteenth Amendment right to same-sex marriage on other grounds, including its own appraisal of the demands of justice and equality, but that sort of ruling, too, is unlikely in the near-term future."

Conkle teaches Constitutional Law, the First Amendment, and Law and Religion. His research addresses constitutional law and theory, religious liberty and the role of religion in American law, politics and public life. He also is an adjunct professor of religious studies and a Nelson Poynter Scholar at IU's Poynter Center for the Study of Ethics and American Institutions.

He can be reached at 812-855-4331 or conkle@indiana.edu. Top

How America treats gay couples. Jennifer Drobac, a law professor at the Indiana University School of Law--Indianapolis, said discussion about gay marriage should be refocused away from whether it should be allowed in the U.S. to how gay marriage should be treated. "As a nation we do now have gay marriage. We have couples in California, Massachusetts and Connecticut," Drobac said. "There's no residency requirement in Connecticut, so any gay couple in the nation can go to Connecticut and get married." How is gay marriage treated in the U.S? "The answer is 'not well.' States can ignore gay marriages performed in other states. This becomes a problem when gay couples and their families cross state lines. And what will happen to the 18,000 couples in California now that voters revoked the right to marry?"

• Drobac expects the U.S. Supreme Court, rather than the states, to provide some resolution on the issue of interstate recognition, particularly because of the Full Faith and Credit clause of the U.S. Constitution. This clause requires states to respect laws and judicial rulings from other states. The doctrine of comity, an extension of legal courtesy and respect to sister state laws, does the same. Marriages between first cousins, for example, can be legally performed in some states but not in others. These marriages, when legally performed, are still recognized as legal in states where such marriages cannot legally be performed. Concerning gay marriage, however, most most states have passed laws or constitutional provisions allowing them to disregard same-sex marriages performed in other states. "It's hard to operate as a nation in a global society if our marriages evaporate when we cross state borders," Drobac said. She said other Constitutional issues include the argument about a fundamental right to marry, considered in the Loving v. Virginia U.S. Supreme Court ruling that overturned a ban on interracial marriage, discrimination against gays and lesbians, and First Amendment issues involving the establishment of a religion.
• Concerning divorce, Drobac said Indiana was considered a divorce mill in the 1850s because of its lax residency rules required of divorcing couples. Couples from other states flocked to Indiana for divorces, creating outrage in states such as New York, which refused to legally recognize the divorces. Indiana considered the ease of divorce a measure to protect women from abusive relationships. The U.S. Supreme Court vindicated Indiana's residency rule but the state later changed its divorce requirements to make them more restrictive.

Drobac, who specializes in family law, can be reached at 317-278-4777 and jdrobac@iupui.edu. Top

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