Commentary: The fight just to be a family

35

By John Krull
TheStatehouseFile.comJohn-Krull-column-mug-320x400

INDIANAPOLIS – A federal judge in southwest Indiana just dropped the other shoe in the same-sex marriage debate.

Judge Richard Young ruled that the state of Indiana must recognize the marriage of an Indiana lesbian couple. Nicole Quasney and Amy Sandler wed in Massachusetts last year.

John Krull, publisher, TheStatehouseFile.com
John Krull, publisher, TheStatehouseFile.com
Quasney now is in the final stages of a fight with terminal ovarian cancer.

The judge determined that Quasney’s condition merited emergency action from the court and issued a temporary restraining order compelling Indiana to recognize the marriage. That means that Sandler and the couple’s two children will find issues of visitation and inheritance easier, less expensive and less complicated.

Commentary button in JPG – no shadowAdvocates for banning same-sex marriage in Indiana tried to take what comfort they could from the fact that Young’s ruling was temporary – issued for only 28 days.

The other signs, though, couldn’t have been reassuring to gay marriage opponents.

The judge questioned whether Indiana’s current ban on same-sex marriages violated the U.S. Constitution’s equal protection and due process clauses. Even more significantly, Young said that there was a reasonable likelihood that Quasney and Sandler would prevail on the merits of their case.

That isn’t exactly news.

The U.S. Supreme Court signaled that the days of same-sex marriage bans could be coming to an end when it struck down the federal defense of marriage act last summer. The court’s ruling said that the federal ban presented Fifth Amendment problems that likely were insurmountable.

At the time, the nation’s highest court left state bans on gay unions untouched.

That encouraged activist social conservatives in Indiana and elsewhere to continue their fights to get gay marriage bans grafted into state constitutions.

The judge’s ruling makes clear that their quest always was quixotic. Even if they had won the political fight at the state level – which they didn’t – they always were likely to lose the legal war.

The proponents for House Joint Resolution 3 – the proposed Indiana constitutional amendment banning both gay marriages and civil unions – said that the measure was needed precisely because of lawsuits like Quasney’s and Sandler’s.

But HJR 3 couldn’t have made any difference in that suit. If a federal gay marriage ban violates the Fifth Amendment, then so does a state one.

Nor would any state have been granted the right to violate the equal protection and due process clauses of the U.S. Constitution. The question of whether any state government had the right to overrule the U.S. Constitution was settled – decisively – 150 years ago in the Civil War.

Judge Young’s ruling makes clear in a couple of ways how costly Indiana’s fight over same-sex marriage has been.

The first is the political one. The fight over HJR 3 was an ugly and painful one that pitted Hoosier against Hoosier. It divided families, friends and communities.

The judge’s ruling makes it clear that the only votes that count now in the debate over same-sex marriage belong to the nine people who sit on the U.S. Supreme Court.

That means we Hoosiers tore into each other for no good reason.

But the more important cost is the human one.

Nicole Quasney is dying. In her last days, she and her spouse are fighting to have their union recognized and to hold their family together.

One of the loudest voices for banning same-sex marriages, Indiana Sen. Mike Delph, R-Carmel, wrote in an oped column, “No one with a soul wants someone harmed or discriminated against for being gay.”

But, as Judge Young has determined, that is precisely what a ban on same-sex marriage has done to Nicole Quasney and Amy Sandler. At a time when all their energies should be focused on making Quasney’s last days as comfortable as possible, on saying goodbyes and of preparing their children for the trials ahead, they instead have to fight in court to have the same rights extended to other Hoosiers. At a time when they most need the strength and support that being part of a family provides, they have to fight for the right just to be a family.

The courts now are sending signals that such discrimination isn’t legal or constitutional.

And many other Hoosiers wonder how any soul ever could have thought that such treatment was just or kind.

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.

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35 COMMENTS

  1. SCOTUS did not strike down DOMA. It ruled federal employees weren’t under it’s mandate, which in essence said SCOTUS was the law-making legislative branch of government for federal employees. Wonder where that is in the Constitution?

    And now, another lawyer in a black robe has determined cancer is a proper cause for disregarding that which he took a solemn oath to follow, honor, and protect: the Constitution of the United States.

    I wonder if Judge Young has even read the Constitution or if he gets his considerations only from the ever changing books of Constitutional law?

    • I don’t know what you do for a living. Are you a lawyer or a judge?
      Even if you are, I think I’ll accept Rick Young’s ruling in the matter. I’m betting he’s read the Constitution, and he is upholding what he read about “…nor be deprived of life, liberty, or property…”. Then, there is the defense of the rights of the minority held in the 14th Amendment, to be considered as well.
      Btw, SCOTUS did effectively overturn DOMA, just as it overturned the Voting Rights Act. Both acts were gutted of their main purpose for existence.

      • Pre or post-pending lawyer or judge to a persons profession or position is not an automagicall incantation said individuals are any better at understanding the founding principles of the Constitution or the Constitution as a whole.

        • We’re in complete agreement. I asked the question because “dis” seemed to think his/her opinion was superior to Rick’s. I really took offense at the wondering aloud if a well-respected jurist had read the Constitution.
          We can all read the words, but we generally interpret them through the prism of our own experiences and beliefs. Therein lies the “rub.”

          • (EKB)
            Cliven Dis has written before that he doesn’t think the Supreme Court has the right to interpret and rule on laws. That is what you’re dealing with there. The Supreme’s power of judicial review was confirmed in Marbury v. Madison. That was in 1803, a year later than many strive to get us back to.

            Then Chief Justice John Marshall: ‘It is emphatically the province of the judicial department to say what the law is.’

      • You always accept judge’s rulings…

        “Dred Scott v. Sandford, 60 U.S. 393 (1857), was a landmark decision by the U.S. Supreme Court in which the Court held that African Americans, whether slave or free, could not be American citizens and therefore had no standing to sue in federal court,[2][3] and that the federal government had no power to regulate slavery in the federal territories acquired after the creation of the United States. Dred Scott, an African American slave who had been taken by his owners to free states and territories, attempted to sue for his freedom. In a 7–2 decision written by Chief Justice Roger B. Taney, the Court denied Scott’s request. For only the second time in its history the Supreme Court ruled an Act of Congress to be unconstitutional.[4]
        http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford”

        Always?

      • EKB esq, There is no choice but to accept his ruling, that’s what being a constitutional republic is about. However, that does not mean we have to agree with it or that he was right.

        It does mean that he changed an Indiana law by decree to favor two and only two people. How that is equal is beyond me. Perhaps you can explain it.

        Krull is just a bobble-head for any far left crusade. His opinion is the most worthless of all.

        • You need to drop the “esq.” crap. I didn’t render a legal opinion. I just agree with one that drives you over the edge.

          • Then you need to quit the snarky way you treat others. “I don’t know what you do for a living. Are you a lawyer or a judge?”

            I am driven over the edge by dolts who cling to an issue so tightly that they can’t see a ruling that favors two people only is not equality.

            The only thing I can contribute such behavior to is that some are so confused on this issue that they do not know where a line should be drawn, Therefore, they afraid to break out of the script and call an obvious inequality for what it is.

            Why else would you only address my “esq crap” and ignore the greater points of my response?

          • @ IE:

            I have learned better than to argue with brick walls. Every once-in-awhile, I forget myself and argue with one that speaks.

          • Oh yes LKB, you’re pompous self is so much higher than the rest of us poor souls mumbling on the internet.

            You are the brick wall. That’s why you throw bricks at others and lay them in your arguments.

            Bovine scat. You can no more explain to me how special rights for two is equality for all than you could explain how you are for polygamy when I extrapolated it to its logical extent.

            You really should be an ACLU lawyer.

  2. No legitimate arguments against Rick Young’s well-reasoned ruling yet today, or probably ever. Very telling that the extremely political Zoeller didn’t appeal it. The Dred Scott decision has already made an appearance. Plural marriage, old maid sisters, incest and marrying one’s tricycle can’t be far behind.

    This thing is over. The Supremes should stop its festering. They should take an appropriate case and rule. Bring the conflicting appellate opinions on the matter into consonance, if we truly are a United States.

    • Yep and if Kennedy had done the correct(never say right) thing he would have added these simple words:

      And therefore since the 14th amendment does not allow the states to deny due process, or equal protection this ruling applies to all 50 states.

      • BTW Dred Scott was overturned BTW the 13th amendment. Learn some history, Sheeeeesh.

        Just like a bunch of other dreadful, corrupt SCOTUS rulings, including saying the Bill of rights did not apply to the states, equal privileges and immunities only applied to access to waterways and upholding the poll tax.

        • Don’t forget Citizens United and the recent decision of the Voter Rights Act. They’re pretty bad.

          • (EKB)
            More succinctly said. Disregard what I wrote while you were distilling it to two more effective sentences.

          • They are dreadful but they haven’t been overturned yet, that’s why I didn’t include them.

        • …paving the way for an oligarchy by conferring personhood on corporations and removing overall limits on campaign contributions/bribes that rich individual donors can heap on their candidates.

          Dumping huge money in an election is only the prerogative of the wealthy. These ill-advised, even corrupt, rulings will be overturned in the future. They will be seen as the Dred Scott decisions of our times. To make elections more fair and less tainted the court’s rulings should be made with the ultimate intention of lessening the amount of money in elections.

        • So, it is your opinion the states demanded a bill of Rights to keep themselves in check? And you also believe they found all poll taxes unconstitutional?

          Why do you refer to yourself as “Brains”?

          • Yes Barron vs Baltimore was an atrocious ruling that had to be overturned by the 14th amendment and various other Court ruling via incorporation of the states.

            Conservtives and bigots only wanted the Bill of Rights for white men so they invented “states rights” to try and pretend they didn’t have to live up to the constitution to they claimed to love so much.

            Sound familiar? It should because it is a poltical fight we’re still having today.

    • Bandana, if you have something to me then say it to me. The CCO isn’t ban happy like the CP was. I like you and we can exchange differences of opinion man to man like big kids.

      I have said numerous times that the court is right in saying a law can not single out a class of people for exclusion or penalties. So how is it that Young can be right in singling in two people alone for special access? How can that in any way be perceived as equality?

      If we open marriage to some based on consent and commitment, then open marriage up to all who qualify no matter number nor relationship. Keep the tricycle exemption however unless you’re willing bake a wedding cake for my dog and his beloved tri-wheeled hotty.

      • I think he considered all the circumstances of the case and ruled compassionately and appropriately. It is a temporary, narrow ruling. He did mention a little of what he thinks about Indiana’s law on the matter. You might have noticed that nationwide things are going towards allowing same sex marriage.

        If two more petition to have their legal marriages recognized in Indiana for whatever reason(s), who knows how he’ll rule?

        You gave your niece something she probably wanted more than anything except for life before she passed away. I know there are many differences but try to see this case in that light. It might look a little different to you, maybe not.

        • I get the compassion part and do not question their love.

          And yes, I did give my niece the best day of her life a day before she passed, but because of marriage penalties, it could only be ceremonial.

          And that is not the only wedding ceremony I have performed because being licensed by the state would cause great financial harm. So the unfairness is not limited to homosexuals. It is a systemic problem created by the state viewing a marriage more as a taxing license than a short cut to other legal considerations.

          The only viable explanation I have heard as to why they felt this change was urgent and necessary was so one could have her name legally listed on the other’s death certificate. Could Young not have decreed that so if he had been asked? (I realize that he can only judge on a case presented to him.)

          Can a judge rightfully rule on a case based on cases that have yet to be ruled upon? If that is allowed, then the other branches of government will become symbolic and subservient to the judicial branch.

          Yes, we will have same sex marriage in some form or another. My prediction is that we will one day have federal marriage laws.

          If so we may as well relegate state authority to nothing more than visitor bureaus and vote Putin 2016. Shirtless he would garner the gay’s and women’s votes for sure. In fact, on a horse he might even take the vote of any cowboys who lean a little toward Broke Back Mountain.

          But having national same sex marriage is not the end of the issue. As I predicted, the right to a wedding wave is upon us. We are only one square away from the white queen taking the bishop to court and requiring him to officiate her marriage to the black queen. That will change the chess constitutions and the new rules may as well be how we feel about them at the time.

          You’ll be sorry when dogs and tricycles OCB. (occupy chess board) blame the acronym lady LKB for that one.

          • To her it wasn’t just ceremonial, I think it was just as you described. She was married and what she thought at the end was all that really mattered. I understand the financial implications of getting the state sign-off and agree it wasn’t necessary or appropriate in that case.

            Young’s temporary order was subject to appeal, temporary injunctions are appealed all the time. Zoeller didn’t appeal it. The judge didn’t rule on a case that was waiting for an appellate decision. He ruled on the particular and even heart wrenching set of circumstances before him. He could have made a broader ruling but it too would have been subject to appeal and maybe would have been. I think he has 3 or 4 more cases waiting to be heard asking that Indiana be ordered to acknowledge legal same sex weddings. We’ll see more then.

            There are for sure other legal solutions to address the financial part but they would leave the partners feeling less whole than married hetero couples feel. They’d just about have to feel like 2nd class citizens. Assuming things are as they were presented in court, nobody was harmed by Rick Young allowing Quasney to die married to the one she loves. As you noted, marriage-wise it doesn’t affect anyone else anywhere. As you also noted, there will at some point be a federal ruling getting all the states on the same page. That’s when the fun will start. Five/four decisions don’t do much to unite the country.

            State authority has been curtailed and superceded by the feds many times. They had control over Vanderburgh’s school system for quite a while to assure proper desegregation (it was expensive, I don’t think it worked and if I would have cared back when it started I probably would have been against it). A federal governement with teeth will continue to be necessary if we are to be a United States (see Abe ordering his legions into the south). Maybe the union has outlived its usefulness. It’d be a shame to see it die or get even more fractured over marriage, same sex or otherwise.

            I know some people have been sued for refusing to bake or take (photos) but that can easily be addressed. I wouldn’t want somebody making me something to eat at the point of a gun or a writ. Wouldn’t want to force someone to take wedding photos knowing they will be purposefully awful and I’d get to pay for the lousy work. Wouldn’t want an officiant that didn’t want to be there, that might put a curse on me. In the case of the cake, the temptation to poison me would be overwhelming.

  3. Bandana, you refer to Marbury vs Madison, but you haven’t a clue as to the facts of the case, Marshall’s covering of his own lack of diligence, or what the Jefferson administration did pursuant to the decision.

    And I have never said SCOTUS doesn’t have the right to interpret or rule on laws they are Constitutionally allowed to review.

    You really need to try to educate yourself. Now, I have said that before.

    • I know everything that can be known about Marbury. You apparently know nothing at all about it except you don’t like it. If it’s not written in the constitution it can’t be a law, right? Why don’t you paddle-foot down to the federal building and ask Rick Young if he’s ever read the constitution, since you implied he hasn’t. You might as well start chewing on the 14th amendment while you’re at it, there’ll be another full moon in less than a month, you’ll be all set.

      You did in fact say the Supreme Court has no legitimate right to rule on the constitutionality of laws. You said it several times on the CP site. Deny it if you want, nobody ever accused you of being truthful. Change the phrasing of your dismissal of the Supremes if you think that’s slick, it doesn’t matter. You just further expose yourself as something that believes it has self-educated itself by reading constitutionalist websites.

      Put that tricorn hat and the white hosiery of a founding papa on, it’ll make you smarter yet.
      It might not be too late for you to become a Phoenix, you’d be in good company and, with proper tutoring, have an associate degree hanging out of your back pocket. You can afford it, you wrote: ‘I’m getting tax cuts. I don’t need to work any longer. I’m wealthy and the tax cuts are just gravy’.

      Another Jim Dandy you wrote indicating your lack of respect for the Supreme Court was: ‘Roe V Wade did nothing. It was merely an opinion. If Indiana’s new governor elect, Mike Pence, was to ignore the opinion and sign a bill sent to him by our supposedly prolife house and senate outlawing abortion in Indiana, that would be Constitutional [sic] on all levels’.

      You wrote that: ‘it wasn’t within the perview [sic] of the supreme court [sic] to review…state laws…’.
      I believe your misspelling of ‘purview’ was a Freudian slip. Maybe you did it on purpose. Maybe it was unavoidable projection.

      You also wrote: ‘Actually, Bush-Gore was crumbs for the ignorant masses in that how the president is elected is spelled out precisely in the 12th Article of Amendment [sic] to the United States Constitution. The opinion of the supreme court [sic] in the matter was of no weight nor consequence and the supreme court [sic] knew it’.

      And this gem: ‘And if it’s not in the body of the Constitution, I see no relevance in what anything “pertains to”.’

      I have more but the above is a fair representation of how you ‘think’. It must be awful.

      Many of your posts on the other site were nasty and personal in nature. As such, they were removed, as were you. Enough remains to paint an ugly picture of someone who doesn’t recognize the authority of the federal judiciary or government. It is reassuring that you are completely powerless to put the craziness that roils in your little noggin into action.

  4. elkaybee says:

    April 18, 2014 at 3:29 pm

    Because he/she is extremely bright and well-informed.
    ============================================

    Thanks Nancy Drew!!

  5. My, he who calls himself “Brains”, on what date did I say SCOTUS has no right to opine on laws legislated by the federal Congress? And the tax cuts part, you have me confused with someone else.

    Everything else you listed about my posts, given my knowledge of the Constitution, the Federalist Papers, and the Constitutional Convention minutes, sounds about right.

    Thank you for listing my brilliance, although it does feel creepy, kind of like cyber stalking on your part.

    • That’s a saver. Thanks. You wrote everything I said you did. You have no more knowledge of the constitution or Federalist Papers than a little child. Despite your lying disclaimer, the ‘tax cut parts’ were written by you. I don’t blame you for trying to disavow it.

      Here’s the whole sorry thing:
      ‘I’m getting tax cuts. I don’t need to work any longer. I’m wealthy and the tax cuts are just gravy. I’m no match for your witty posts, but I am wealthy’. ~~ disaffected, July 23, 2010/9:39 a.m.

      You might like it better in this form:
      http://s26.postimg.org/8vu3rzp15/Dis.jpg

      The girl who responded to you pretty well had you made.

      I don’t mean to disappoint you, but I’m done with lying trolls for the day. I’ll leave you to wallow in your uh…wealth and constitutional knowledge.
      Ho ho ho.

      • “Cliven Dis” is a good way to describe this long-time troll. I am so sick of the idiots who are in Nevada “protecting” the thieving, worthless Cliven Bundy. They all claim to be “patriots” while they pick and choose which parts of the law they are willing to abide by.
        The real killer is that a lot of the “Oathkeepers” and other militia-types are living off “gubmint checks” and Food Stamps. That sort of group seems to draw a lot of law-enforcement and military wash-outs who get disability checks, often for mental problems. They’re always free to run off to protect a “patriot” because they don’t have jobs, they can hold ranks that they aspired to and could never attain, and they can “play army” with real guns.

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