Indiana could be home to a massive civil rights victory for same-sex couples

That is, if Indiana doesn’t fuck it up. Which I’m sure they will.

Back in August at the Indiana State Fair, the stage collapsed due to unusually high winds, killing and injuring many. One of the people killed was Christina Santiago of Chicago. Christina was a gay rights activist and was in a civil union with her partner Alisha Brennon. Alisha recently filed three lawsuits seeking damages for the death of her partner, but Indiana doesn’t recognize outside same-sex marriages or civil unions because the majority of our lawmakers are a bunch of ignorant bigots elected by a bunch of ignorant bigots.

*deep breath*

Now people in Indiana are starting to sweat. No one wants to be an obvious bigot and enforce these laws, but no one wants the laws deemed unconstitutional, either.

Indiana does not allow civil unions, and it does not recognize same-sex unions from other states. But Indiana Attorney General Greg Zoeller said he will not make civil unions an issue as he defends the state from a federal case filed by Brennon.

“(The state) will seek dismissal of the entire case, but not on the basis of a civil union,” Zoeller said in an email to the Tribune.

“We generally believe it will be up to the Legislature to decide whether to rewrite the laws concerning liability and beneficiaries, and up to the courts to decide how to interpret those laws,” Zoeller said.

[…]As the lawsuits move through Indiana and federal courts, one of the defendants or a judge will ask whether the couple’s civil union was still legal when they crossed the state line, experts said.

“It’s an inevitable legal battle,” said Andrew Koppelman, a professor of family law atNorthwestern University Law School. “It has to happen. They’re going to give her money as this woman’s spouse, so someone has to say whether you get to give it to her or not.”

A judge could raise the issue of whether Brennon’s civil union with Santiago gives her a right to be compensated for the loss of her partner, Koppelman said. If the state won’t raise the issue, one of the other defendants is almost certain to try to use the civil union issue to get the case dismissed, he said.

Donald Gjerdingen, a professor at Indiana University Law School in Bloomington, said that any of the three lawsuits Brennon has filed are certain to evolve from routine wrongful death cases into civil rights battles.

“There are just so many ways this issue could be raised,” Gjerdingen said. “As a case, it is just a perfect example of the issues that come up because of the patchwork of laws that we have and the federal Defense of Marriage Act that took effect in the 1990s.”

Under federal law, marriage is defined as being between one man and one woman. States can create civil unions or other marriage-like legal status for same-sex couples, but the federal law also says no state is required to recognize civil unions from another state, Gjerdingen said.

The situation mirrors the laws that governed interracial marriage in the pre-Civil Rights Era, or varying rules on marriage age or incest, Koppelman said. In the last century, differing laws raised legal questions among states about whether an interracial couple who married in Illinois were considered married in Mississippi, or if a man who married his cousin in one state had committed incest in another.

Courts eventually decided the governing law was whatever the law was in the state where the couple lived.

“When you crossed state lines, your marriage did not turn on and off like a light bulb,” Koppelman said.

Because same-sex unions, and same-sex marriage bans, are relatively new, the case law is not as settled.

If the courts were to make a ruling that changes Indiana’s marriage laws, that could spur other legal action, said Micah Clark, director of the American Family Association of Indiana, a group that led the drive for a defense of marriage amendment in Indiana. “If this were to be a challenge to our marriage laws or start redefining marriage laws, we would certainly get involved in the lawsuit,” he said.

Indiana lawmakers last spring voted in favor of amending the state constitution to ban gay marriage and deny recognition of out-of-state same-sex unions. The amendment must pass a second session of the Legislature, then go to a popular vote, a process that could happen by 2014.

By then, Brennon’s case still could be working its way through the courts, said her attorney, Kenneth Allen.

“We can set precedent that establishes legal rights for lesbian couples in this circumstance, and it can be applied to other contexts,” Allen said. “For those that loved Christina to find any purpose in her death, we had to proceed in this fashion. Otherwise, her death makes no sense at all.”

This will be an interesting legal battle that may set the precedent for states recognizing same-sex marriages and civil unions from other states. I’d be so proud of Indiana happened to be starting point of the Defense of Marriage Act being found unconstitutional. But I have this sinking feeling in my stomach that Indiana is going to disappoint me like it always does.


  1. fastlane says

    Although my wife and I are hetero, we filled out powers of attorney for each other within weeks of moving in together, mostly to avoid her (dysfunctional and abusive) family from interfering should something like this arise.

    I think all same sex partners should do the same, even if they are married, at least to cover their legal bases. Yes, it’s stupid that they should have to when hetero couples don’t, but I think it’s still worth the minor inconvenience initially, at least until this country gets rid of its archaic bigotted laws and actually moves forward with civil rights for all.

  2. says

    If Indiana becomes ground-zero for anything anti-DOMA, I might actually say something good about it. I have never done that before.

  3. freemage says

    This bit from the attorney kind of irritated me:

    “We can set precedent that establishes legal rights for lesbian couples in this circumstance, and it can be applied to other contexts,” Allen said. “For those that loved Christina to find any purpose in her death, we had to proceed in this fashion. Otherwise, her death makes no sense at all.”

    I hate to say it, but from a skeptical PoV, her death “makes no sense” regardless of the outcome. There is no Grand Plan that makes death and tragedy somehow ‘sensible’–it’s just shit we have to deal with. Death has no ‘purpose’.

    Now, that said, I agree that it would be wonderful if some good could be extracted from this tragedy, and I hope the suit itself is successful beyond all measure–with one caveat, namely that it would’ve been successful if it was a case of a married hetero couple. If the fairgrounds wasn’t negligent in setting up the stage, but the storm was simply beyond the bounds of the ability of the fair operators to cope with using reasonable construction techniques, then the suit should be dismissed just as it would for a het couple.

    OTOH, I’d say that even fighting it out on those grounds, rather than on a ‘standing’ claim based on their same-sex relationship, counts as a victory, even if the suit itself is dismissed.

  4. Glodson says

    This is something that I’ll never understand. I mean, this is part of the fucking reason I stopped going to church way back when in the first place. For some reason, some people seem to think it is okay to deny others a fucking right based on their sex life. All because some fucking book says it.

    I hope DOMA gets struck down. Hell, I would love it if every small minded bigot realized how their little seeds of hate have hurt other people. I guess I’ll just file that with the rest of the stuff I wish would happen but won’t.

  5. RdeG says

    “purpose in her death”? “her death makes no sense”? Her death makes perfect sense: she was crushed by a collapsing stage. The normal reaction of human bodies to that sort of stress is to die. Most deaths have no “purpose”; she presumably wasn’t any different.

    Maybe Allen means that some good can come out of Christina’s death if this case succeeds?

  6. Victoria says

    I really don’t understand how the courts can say that you don’t have to recognize a marriage in another state. Like, how does the full faith and credit clause of the constitution NOT cover that? It’s a legal contract and other states are supposed to be obligated to recognize other states’ contracts. Unless I’m confused.

  7. says

    Powers of attorney evaporate when one of the partners dies and, though they might indicate you and your partner’s states of mind during life, they have no force after death. What you need are reciprocating last wills & testaments.

  8. steve says

    I don’t think the constitutional issues have been raised in any federal court, but I think they would apply if a suitable test case were presented.

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