Federalism & Hypocrisy

I see that Indiana Attorney General Greg Zoeller has filed a “friend of the court” brief, urging the First Circuit Court of Appeals to overturn a lower court decision invalidating the “Defense of Marriage Act.” The court held that marriage is a state issue over which the federal legislature lacks authority.

I would have expected Attorney General Zoeller to applaud that ruling—after all, he has argued strenuously against federal authority in a number of other situations. He has even insisted that the federal government lacks authority to interfere with state decisions about Medicare—a federal program. Apparently, it’s okay for the feds to dictate state policies when he agrees with those dictates.

Can we spell hypocrisy?

It isn’t as if there is imminent danger of same-sex marriages being recognized in Indiana. Our appellate court has ruled that there is no state constitutional right to such marriages, and Indiana law has its own “defense of marriage” provision which was unaffected by the ruling.

Of course, the absolute absence of gay marriage in Indiana hasn’t kept the current legislature from reviving a proposed state constitutional amendment explicitly banning same-sex marriage along with anything “substantially similar” (whatever that means). This looks a lot like Oklahoma’s effort to prevent its courts from applying Sharia law—something exactly none of them were doing. Oklahoma lawmakers wanted to signal their hostility to Muslims, and these Indiana lawmakers want to signal their hostility to gays.

The truth of the matter is that the only way Indiana will ever get same-sex marriage is if the United States Supreme Court rules that the U.S. Constitution requires it—and if that happens, a state constitutional provision won’t be enforceable anyway. So reasonable people might wonder why our lawmakers are spending their time on nonexistent issues when we have so many real problems to address.

Continued tilting at this imaginary windmill wouldn’t much matter if it weren’t for the collateral damage the amendment would cause.

Indiana has been trying to recruit and grow high-tech employers—companies that are among the most gay-friendly, and that have significant numbers of gay employees. Passing an anti-gay constitutional amendment won’t exactly promote these economic development efforts.  There’s also a concern that writing discrimination into the constitution—the first time a constitutional provision would be used to deny civil rights rather than expand them—sets a dangerous precedent.  And far from “protecting” families, this measure’s vague language would make life more difficult for gay Hoosier families without in any way assisting heterosexual ones.

Efforts to improve the economy, grow jobs, streamline government and improve public education would actually help Hoosier families. But I suppose it is easier to pander to anti-gay sentiment than it is to improve life for all Indiana citizens.

On an unrelated note: This is my last column for the Indianapolis Star. I have deeply appreciated the comments and emails from readers over the years—pro and con—and invite those who wish to continue the conversation to do so at www.sheilakennedy.net.


  1. Good luck with the new venue! I’m so glad I will still be able to read your columns. It will be through your blog (because I understand blogs — I don’t understand feeds and I don’t have an account on the facebook. I know, I’m so old school!)
    Looking forward to continue reading!

  2. Thanks, Tami. I’ll also continue to send out columns to my distribution list, but it may clog your inbox, because I plan to write at least once a week…..

  3. As one of my most revered instructors, I am sorry your public audience is shrinking, and just when they need it the most.

  4. Sheila, Any expectation that Conservatives will maintain some semblance of consistency in the application of “principles” will be found to be riddled with exceptions. Even the bumper stickers of “lower taxes” and “smaller government” and “states rights” have their monumental exceptions. Republicans have maintained that the states are supposed to be left free for unfettered “experiments” in government. Tell that to Oregon when they attempted repeatedly to “experiment” with the concept of “assisted suicide” and were just as repeatedly rebuffed by the federal government under the Bush II. Conservatives have, over the years, whined and screamed about “activist judges”. We have, however, experienced a thundering silence following “Citizens United” and the most recent Florida decision invalidating the new health care act in its entirity. The examples are legion. It is, by and large, futile to seek for consistently applied principles among politicians in general but especially among conservatives in particular. Outrage anyone in re moral and ethical transgressions among conservative legislators? Hello, all you “C Streeters”…we’re still waiting.

  5. Your points are well-taken, especially the phony outrage about “activist” judges. As that term is employed by the Right, an “activist” judge is one who renders a verdict with which they disagree.

  6. I was very disheartened when I read this column. Your Star work has been one of the intellectual highlights of my life. But now that I have seen the blog, I am delighted! I didn’t know you had all this excellent commentary available.
    I used to work at FHLBI and got to know you a bit (and take your picture) there. Ever since I have followed your voice as you urged truth, clear thought, and liberty. May your voice continue to be heard!

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