In Indiana, three days of equal protection under the law

“Government regulation of our lives.” We don’t want it in our gun cabinets or in our bedrooms, and a growing number of Hoosiers believe it has no place in our marriages, either.

Posted on July 3, 2014 at 4:31 p.m.

FREMONT, Ind. — The last week of June brought extraordinary images to Indiana. With the stroke of a pen, federal Judge Richard Young stuck down the state’s marriage laws passed by overwhelming bipartisan majorities. Within hours, hundreds of gay couples flowed into Hoosier courthouses from Indianapolis, to Nashville, to Washington.

Three days later, a stay was sought by Republican Attorney General Greg Zoeller, and it was issued by the 7th Circuit Court of Appeals in Chicago, leaving many of the newly married Hoosiers in legal limbo.

Several things struck me about these events. First, the hundreds of gay and lesbian couples that flowed into Hoosier courthouses large and small did not do so on a whim. Many of them had been in committed, monogamous relationships for years, if not decades. They were seeking equal protection.

But there was an inverse reaction by many, who saw the ruling as an affront. To these Hoosiers, marriage is to be between one man and one woman. The laws were passed by Republicans and Democrats and signed and supported by governors from both parties. They saw “judicial activism” turning over laws enacted by the people’s representatives.

Daviess County Clerk Sherri Healy found herself confronted by this legal and cultural twist, or the “gray area,” as she described it. But then she articulated thoughts that had many Hoosiers nodding in agreement, telling a gay couple seeking a license that "our country was founded on the biblical principle of one man and one woman in marriage, and until I hear otherwise, that is what I will follow."

State Sen. Mike Delph, the Carmel Republican and a big proponent of the marriage laws as well as the state’s proposed constitutional amendment banning same-sex marriage and civil unions, once handed me a pamphlet entitled “The Constitution of the United States.” On several of the first pages, it quotes George Washington, Daniel Webster, Benjamin Franklin, Thomas Jefferson and John and Samuel Adams as “Observing the Hand of Providence.”

The U.S. Constitution, Webster would observe, was the work of the “purest patriots” who were aided “by the smiles of a benignant Providence. It almost appears a Divine interposition in our behalf.” John Adams was quoted, “Our Constitution was made only for a moral and religious people.” But the predominantly Christian nation of the 18th through 21st centuries may, in two or three centuries, give way to a majority Buddhist or Hindu nation. The Founders purposely separated church and state.

Despite what Healy told couples in Daviess County, there is no reference to marriage in the U.S. Constitution.

But there is the 14th Amendment, Section 1, which reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

I am no attorney, but when I first began writing about the gay marriage issue a decade ago, the 14th Amendment jumped out at me. I saw nothing else in our Constitution that would trump it. Yet our governor, attorney general, speaker of the House and president of the Senate — all with law degrees — come to different conclusion.

How could they? Personal belief and politics.

All of them first became public servants or were elected in an era where close to 60 percent of Hoosiers believed that marriage should be between one man and one woman. Their political reality is that still today, as a standing vote at the Indiana Republican Convention revealed with 75 percent supporting a marriage platform plank. But much of the rest of the electorate is moving in a different direction.

We project our own views through the American experience. This is why Thomas Jefferson could pen, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness.”

And we all know that Jefferson was a slave owner, as were about a third of the signers. America evolved on the issue, fought a Civil War to change and amended the Constitution.

State legislatures create laws, just as Hoosier legislators have, that have been overturned. In his 1963 inaugural address, Alabama Gov. George Wallace defiantly defended his state’s Jim Crow laws, declaring, “In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever.”

In 1982, Wallace told a group of Alabama blacks, "We thought [segregation] was in the best interests of all concerned. We were mistaken. The Old South is gone," but "the New South is still opposed to government regulation of our lives."

“Government regulation of our lives.” We don’t want it in our gun cabinets or in our bedrooms, and a growing number of Hoosiers believe it has no place in our marriages, either.

Howey, a former Elkhart Truth reporter, publishes at www.howeypolitics.com. Find him on Twitter @hwypol.


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