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INDIANAPOLIS – Last summer when the U.S. Supreme Court struck down the federal ban on same-sex marriage, Justice Antonin Scalia complained in his dissent that the ruling would unleash a wave of litigation at the state level.
John Krull, publisher, TheStatehouseFile.com
Scalia is wrong about a lot of things, but he was prescient in this case.
And the wave hit Indiana a few days ago when four Indiana couples filed suit challenging Indiana’s legal ban on same-sex marriages. The suit filed in federal court argues that Indiana’s ban violates the U.S. Constitution’s guarantees of equal protection and due process.
The filing produced harrumphs from social conservatives who had fought to amend Indiana’s constitution to ban same-sex unions and some handwringing among advocates for equal rights for gay Hoosiers who worried that the suit was poorly timed.
The truth is that, for several reasons, the quicker the issue of same-sex marriage at the state level can be put in front of the U.S. Supreme Court for final resolution, the better.
The first reason is that the nation’s highest court can spare states many nasty family battles. Indiana just emerged from an ugly fight that pitted Hoosier against Hoosier for weeks over House Joint Resolution 3, the proposed state constitutional amendment banning gay unions. That fight produced bitterness and hard feelings that likely will linger for years.
The tragedy of it is that the whole fight was pointless. Indiana has a ban on the books already – the one that this suit challenges – and adding a state constitutional amendment wouldn’t have created any additional defense to a challenge in federal court.
One way or the other, this challenge was coming. We Hoosiers tore into each other for no good reason.
The second reason the Supreme Court needs to deal with this is that it will prevent states from descending into absurdity.
A federal court ruled a few weeks ago that Kentucky – which has a state constitutional ban with language virtually identical to Indiana’s proposed ban – could not refuse to recognize same-sex unions performed in other states. The court didn’t rule on the constitutionality of Kentucky’s ban – the judge is weighing that now – and that left the state in a strange position.
If that federal ruling stands and the state’s constitutional amendment remains in place, Kentucky will grant more rights to people who have left or who have come to the Bluegrass state from other places than it does to lifelong residents.
The third and most compelling reason the issue of same-sex marriage needs to go before the Supreme Court is that it is unfinished business. Only the nation’s highest court can settle this national argument and it needs to do so quickly.
We learned that much from the court’s ruling last summer. In the majority opinion, the court said that the U.S. ban on same-sex unions created insurmountable Fifth Amendment problems.
That raised a question that the court at the time refused to answer: If a federal ban on same-sex marriages violates the Bill of Rights, wouldn’t state bans do the same?
Scalia didn’t like the Supreme Court ruling on same-sex marriage for not particularly judicial reasons. He whined in his dissent that the fact he doesn’t like the idea of gay people being together doesn’t mean that people should think he’s a bigot.
But in one important sense he was right.
The ruling created more questions than it answered. It encouraged citizens of many states, including Indiana, to go at each others’ throats. And it virtually begged for lawsuits like the one just filed here in Indiana.
The Supreme Court should have settled the issue of same-sex marriage last summer, but it didn’t.
The nation’s highest court should do so now.
It’s time for the nine Supreme Court justices – the only nine votes that really count now when it comes to same-sex marriage – to do their jobs.
It’s time for them to lay down the law on same-sex marriage.
It’s time for them to end this fight.
John Krull is director of Franklin College’s Pulliam School of Journalism, host of “No Limits” WFYI 90.1 Indianapolis and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students.