Indiana Court of Appeals Preserves Definition of Marriage
by Ryan McCann

Yesterday's ruling by the Indiana Court of Appeals was not merely about upholding a "ban" on same-sex marriage, as the mainstream media would have us believe (Attention Mainstream Media: When you frame conservative issues in the negative you show your bias and lose your customers). It was much more significant than that. It was about the jurisdiction of the judiciary and whether State recognition of marriage is an absolute individual right or a limited public good.

Same-sex marriage activists must argue that marriage is an absolute individual right in order to convince us that their cause is equivalent to a struggle for equal civil rights. On the other hand, the argument that homosexuality is a public good is nearly impossible for these activists to win and contrary to the beliefs of most Americans. Thus, they argue that allowing a man and a women to marry, but not two men or two women is "discriminatory" and "intolerant" because all Hoosiers and Americans possess this government-recognized, absolute, individual right to marry whoever, or perhaps whatever, we want.

What we can easily miss, but the Indiana Court of Appeals did not, is that these activists start from a faulty premise. The State of Indiana does not recognize marriage in order to promote absolute individual rights. Rather, the State recognizes marriage, "in order to encourage male-female couples to procreate within the legitimacy and stability of a state-sanctioned relationship and to discourage unplanned, out-of-wedlock births resulting from 'casual' intercourse" (Morrison v. Sadler).

In other words, the State recognizes marriage as a limited public good, because, "The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic" (Morrison v. Sadler).

The opinion was not perfect. However, Judges Barnes, Kirsch and Friedlander (in that order) should be commended for their work. In the lead opinion Judge Barnes rightly finds that defining marriage as between a man and a woman does not violate the Indiana Constitution and that the proper venue for the Plaintiffs to institute same-sex marriage is the General Assembly, not the court system. Finally, a judge who understands the role of the judiciary!