Ginsburg’s question presupposes an inaccurate (to put it mildly) narrative about the development of marriage law.
Same sex marriage is already not accorded legal status in Indiana. So why all the fuss?
For the uninitiated, the issue of same sex marriage is dominating Indiana’s political discourse. Opponents of legally defining same sex unions as marriages are pushing a state constitutional amendment that would prevent Indiana from giving legal recognition to same sex marriage. Some versions of the amendment would prevent legal sanction of civil unions as well. Although Indiana already has statutes defining marriage as between a male and a female, many fear that, one day, the courts may manufacture a constitutional right to same sex marriage. In several states, including Iowa and most recently New Jersey, state courts declared same sex marriage a constitutional right, taking this important public policy issue issue away from the legislature or the voters. The legitimate worry is that Indiana could be next.
The amendment’s opponents have enlisted prominent Republican strategists, and much of the state’s business and academic community, to defeat the amendment. Opponents of the amendment argue that it would inhibit companies’ ability to recruit top talent, and would make it difficult if not impossible to reverse course should same sex unions become more widely accepted down the road. Of course, the amendment would not prevent those same companies and entities from offering insurance and benefit packages to employees who are in same-sex unions. More generally, opponents argue that the amendment presents an unwelcoming image for the otherwise über-hospitable Hoosier state.
Where might same sex marriage proponents and opponents find common ground? Perhaps by agreeing that the issue belongs with the legislature and the voters, not the courts. Instead of pursuing a constitutional amendment to forever prevent legal recognition of same sex unions, opponents might pursue a narrower amendment, or even a statute, that would strip courts of jurisdiction to define marriage.
At the federal level, Congress has long exercised the authority to strip courts of jurisdiction to hear certain types of cases. Article Three, section one gives Congress the power to establish “such inferior Courts as the Congress may from time to time ordain and establish.” The Supreme Court has held that this language implicitly gives Congress the power to define the jurisdiction of the lower courts. E.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 338 (1816).
Indiana’s constitution contains similar provisions. Article seven, section one, gives the General Assembly the power to establish courts. Article seven, section eight states that, “The Circuit Courts shall have such civil and criminal jurisdiction as may be prescribed by law.” Indiana’s Supreme Court, in turn, has written that this section may allow the legislature to strip the courts of jurisdiction in certain types of cases:
“The words ‘may be prescribed by law’ mean that jurisdiction is subject to legislative control. We would not hold that the legislature could take all jurisdiction from circuit courts, making them mere empty shells … but we can see no valid objection to removal of certain types of cases to courts peculiarly constituted for their determination.” State ex rel. Gannon v. Lake Circuit Court, 223 Ind. 375 (1945).
These concepts should allow the General Assembly to ensure that only the legislature, rather than state courts, can define marriage. As a statute, the legislature would simply declare that courts have no jurisdiction to consider the legality of Indiana’s statutes that already define marriage as between a male and a female. Of course, notwithstanding the language in Gannon and similar cases, there is a risk that the courts could find such a statute itself unconstitutional. To eliminate that risk, a simple amendment would ensure that the ultimate decision remains in the hands of the people — something along the lines of, “No court shall have jurisdiction to define marriage, without the express consent of the General Assembly.”
Both opponents and same sex marriage advocates would benefit from a law or amendment that stripped the courts of jurisdiction to define marriage. Advocates of conjugal marriage as the institution’s definitive basis would gain the certainty that only the voters, rather than the courts (at least state courts), could decide to legalize same sex marriage. They also would avoid antagonizing the business community and risking a potentially devastating defeat at the ballot box, as some recent polls show that a majority of Hoosiers oppose an amendment to ban same sex marriage.
On the other hand, same sex marriage proponents also would benefit from such a limited amendment. They would preserve their ability to extend legal recognition of same sex unions through statutory changes, should public attitudes shift in their favor in coming years. They would garner some good will among their opponents, by disavowing the strategy of attempting to use the court system to circumvent the will of the voters. And they would avoid a bruising, unnecessary fight — exactly their arguments for opposing the broader constitutional amendment in the first place.
Judges often use jurisdictional rules to avoid thorny issues. On the contentious issue of same sex marriage, Indiana’s political leaders might be wise to do the same thing.