This blog will seek to explore the changing definitions and dimensions of “marriage” and how it may be expanded in the fairly near future. Voluminous amounts of information exist on this controversial topic, and this blog will only explore the tip of the iceberg.
The changing tide of marriage today can be seen simply from a statistics standpoint. The number of couples getting married is declining, the number of couples divorcing is increasing, and the average age of couples getting married is increasing as well.
The “average American family” definition is evolving, and what once was considered “family” is expanding. Families are generally no longer a father, mother, and 2.5 children. Rather, extended family members are playing larger roles, and step-siblings and half-siblings are becoming quite common in many family make-ups.
The law is thus shifting with the changes to family. At Ciyou & Dixon, P.C., we are consulted regarding de facto custodian issues (gaining custody of a child who is not biologically yours, but for whom you have been the primary physical and financial care giver for a prescribed period of time) almost as much as for custody matters stemming from divorce. Cases are often based in paternity law rather than divorce law as many couples have children out of wedlock.
This changing tide of families also includes the definition of who can marry. Recently, the Obama Administration came out in favor of same sex marriages, and Courts of Appeals across the nation are reviewing cases involving the definition of marriage and the benefits of same.
The United States Court of Appeals for the First Circuit ruled just in this past month that the Defense of Marriage Act (herein, DOMA) discriminates against gay couples. In its findings, the Court referenced more than once that this was likely a case that would be taken to the United States Supreme Court.
The First Circuit Court of Appeals case involved same-sex couples being denied federal benefits because they were not married as defined as between a man and a woman. The opinion centered around one section of DOMA1, and held that same was unconstitutional because denying federal benefits in Massachusetts was not shown to adequately support any federal interest.2
The definition of marriage is controversial, but this opinion seems to be a step towards the United States Supreme Court examining the constitutionality of DOMA and same-sex marriage and the implications for millions of Americans throughout the United States.
In Indiana, a recent case involving same sex marriage was decided in 2005 by the Indiana Court of Appeals. In this case, couples in Indiana sought marriage licenses from court clerks and brought this action when they were denied same because they were not heterosexual.3
The Indiana Court of Appeals held that DOMA (Indiana’s version) did not violate Indiana’s Equal Privileges and Immunities Clause, privacy rights, or “remedy by due course of law”. Specifically, that the relevant portion of Indiana’s DOMA was “Only a female may marry a male. Only a male may marry a female”.4 In its opinion, the Court focused on the issue of natural procreation versus adoption, in vitro fertilization, and similar forms of conception outside of a child conceived through sexual intercourse between a man and a woman.
The Court noted “the key question in our view is whether the recognition of same-sex marriage would promote all of the same state interests that opposite-sex marriage does, including the interest in marital procreation.” The Court explained that marriage is important between a man and a woman because children can only be “naturally procreated” by sexual intercourse between a man and a woman, and due to this responsibility, marriage is between same to promote this “family”.
However, even since 2005 when Morrison v. Sadler was decided (there was no transfer of this case to the Indiana Supreme Court), the definition of family has continued to change. With the increase of new families with members who are extended, half, and step, the definition of marriage may be the next shift to occur.
The First Circuit Court of Appeals case may very well be heard by the United States Supreme Court in the near future, and same could affect all states and couples. Indiana has a firm stance on the definition of marriage, however, the trend away from “typical families” continues to increase, and same may be reevaluated soon.
The constitutional issues involved in the legal issue of same-sex marriage are vast and complex. We hope this blog post has broadened your generally understanding of DOMA and marriage. Ciyou & Dixon, P.C. attorneys practice throughout the State. This biog post was written by attorney Bryan L. Ciyou and Jessica Keyes.