Indiana Appeals Court Upholds Same-Sex Marriage Ban

Today, the Court of Appeals of Indiana issued an opinion in the case of Morrison v. Sadler holding that Indiana's "defense of marriage act," which states that Indiana does not recognize same-sex marriages performed in other jurisdictions, does not violate the state constitution. While I don't particularly care whether or not Indiana's constitution tolerates the rejection of out-of-state same-sex marriages, a couple of things surprised me about this opinion:

First, I was surprised to learn that Indiana applies only the "rational basis test" when testing the constitutionality of its statutes. "Unlike federal equal protection analysis, there is no varying or heightened level of scrutiny based on the nature of the classification or the nature of the right affected by the legislation [in Indiana]." And this rational basis test is so forgiving that the Court noted : "No statute or ordinance has ever been declared facially invalid under the . . . test." None. Ever.

Second, the Court's reasoning (as I understand it) is outrageous, if not idiotic. It goes something like this:

1) Evidence shows that children do best when raised in stable families with two parents. 2) Evidence further shows that people have sex with each other, whether married or not.

When opposite-sex couples have sex, it frequently causes accidental pregnancies, and produces babies the couples don't want. The state's opposite-sex marriage laws encourage such people to get married, which benefits these unwanted children. The state has a legitimate interest in promoting the welfare of children.

But when same-sex couples have sex, it can't cause accidental pregnancies. Indeed, when a same-sex couple wants to have a child, they have to make a concerted effort to have one, such as through adoption, assisted reproductive technology, or a surrogate. By making such a concerted effort, these couples have already demonstrated a strong commitment to having and raising children, so there is no need for the state's marriage laws to provide any extra encouragement.

That's a legitimate reason to deny the legal benefits of marriage to a class of people based on gender and/or sexual orientation???

I don't mean to sound facetious, but that strikes me as insane: Indiana affords the benefits of marriage to heterosexuals because of their tendency to accidentally produce unwanted children, but denies these benefits to gays and lesbians because they tend to have children only when they really, really want them. Yeah. That makes sense. (Hat tip to How Appealing for the link to the opinion.)

[Note: Just to be clear, the words in italics above are not quotations from the Indiana Court's Opinion, but are my "editorial summary" of the Court's position.]