Panelists debate constitutionality of existing Indiana marriage law

Two legal experts agreed that the debate over same-sex marriage ultimately hinges on personal values during a talk at the School of Law Tuesday afternoon. \n"At some basic level, you have to step back, and it depends on your world view," the Legal Director of the Indiana Civil Liberties Union Ken Falk told the audience of approximately 200 law students and faculty crowded into the Moot Court Room. \nFalk currently represents three same-sex couples seeking Indiana marriage licenses by asserting the state's marriage statute unfairly discriminates against homosexual couples.\n"We are claiming that this statute is unconstitutional under Indiana's constitution," he said. \nFormer counsel to Ronald Reagan and 1998 U.S. Senate candidate Peter Rusthoven disagreed. \n"Every single statute, every single law is discriminating in this sense," Rusthoven said. That's what law does. The question is: is this the kind of discrimination we support?"\nFalk argued that Indiana's marriage law violates his clients' right to privacy. \nRusthoven assailed Griswold v. Connecticut, the 1965 U.S. Supreme Court case that established a constitutional right to privacy by stating that passing a law banning contraception is unconstitutional. He said though the law outlawing contraception was stupid, it was not unconstitutional. \n"Not everything that is stupid is unconstitutional," Rusthoven said. "Not everything that is bad is unconstitutional. The problem with the right to privacy is that it has no logical stopping point."\nRusthoven said the citizens of Connecticut in 1965 should have voted out their representatives if they wanted the law on contraception to change instead of allowing the U.S. Supreme Court to decide what is law. \nFalk likened the current debate to the landmark 1967 U.S. Supreme Court decision Loving v. Virginia, which struck down laws against interracial marriage. Falk compared gay marriage opponents to the supporters of anti-miscegenation laws who argued that allowing people of different races to marry would undermine the integrity of traditional marriage.\n"Tradition does not trump the constitution," Falk said. "The singular beauty of the Bill of Rights is that it is an organic document."\nRusthoven said while he personally was against same-sex marriage, he believed the legislative and not the judicial branch had ultimate say over the issue. He said the courts should not impose an artificial consensus on same-sex marriage when most Americans still oppose it. \n"This is a representative democracy," Rusthoven said. "This means that you and I can fight these things out peacefully. We can fight them out the way the founders anticipated. You may very well win this in the democratic process. What you will not have done is forced your views on what is still a majority."\nRusthoven said the American democracy suffers when the courts usurp the powers of the legislature, as he believed they were doing in the same-sex marriage debate. He said average citizens' abilities to affect the laws is diminished because decisions are no longer made by the elected officials representing the views of the majority, but instead by an unelected few insulated from the will of the people. \nRusthoven said amending marriage to include same-sex couples would have the unintended consequence of opening up the institution to polygamists and incestuous couples.\n"Once you take a step, you never go back," Rusthoven said. "One problem with slippery slope arguments is that they're always right." \nSecond-year law student Liane Groth, a member of the American Constitution Society, which helped sponsor the event, said the issue of same-sex marriage has moved to the forefront in recent months.\n"We wanted to bring that debate to the law school," Groth said.\nRusthoven said marriage, because of its importance to society, should be treated as something special and different from other relationships.\nFalk agreed marriage is a special institution, and said that is why it's important same-sex couples be allowed to participate in it. Falk said now we look back on the racist nature of the anti-miscegenation laws in Loving and we're embarrassed.\n"I'm hopeful that in 30 or 40 years from now, my children will look back on this debate and be embarrassed just as I'm embarrassed by Loving," Falk said.\n-- Contact staff writer Daniel Wells at djwells@indiana.edu.