King: DOMA Ruling Leaves Indiana with Uncertainty

August 3, 2013

by Stephen M. King, Ph.D.

In U.S. vs. Windsor, the Supreme Court of the United States ruled that the provision in the Defense of Marriage Act (DOMA) denying federal benefits to legally married couples was unconstitutional. The court, however, left intact Section 2 of DOMA, which essentially says that all 37 states that do not recognize same-sex marriage are not required to recognize same-sex marriages in the 13 states that do.

Confusing? It only gets worse.

This inaction on the part of SCOTUS is causing havoc with the administration of state social services in the 37 states that do not recognize same-sex marriage, including Indiana.

David Hansell, a consultant with the firm KPMG who advises states on legal and administrative matters related to social-services programs, contends that this ruling puts the state agencies in the position of having to administer these programs while balancing a responsibility to both the federal government and the states, meaning their own state.

And to complicate matters, a federal judge in Ohio ruled that Ohio must acknowledge same-sex couples who were married in Maryland (one of the 13 states that does recognize same-sex marriage) so same-sex couples can be buried in the same cemetery in Ohio. Other states will probably succumb to the homosexual lobby’s pressure and pass laws recognizing, although not necessarily outright legalizing, same-sex marriages.

Not confusing enough for you?
Indiana law mandates that for a marriage here to be valid it must be between one man and one woman. In addition, Indiana does not recognize same-sex marriages conducted and recognized in another state.

Yet, because of the court’s DOMA ruling — and, as importantly, the Ohio ruling — Indiana state officials will need to gear up for challenges from same-sex couples legally married in another state but who moved to Indiana. It will be argued that it is discriminatory to deny various social-services benefits, such as Medicaid and food stamps.

The 800-pound gorilla is that these services are administered by the state but funded by the federal government. So, the question is this: Who will decide whether or not same-sex couples in Indiana receive these services, the state or the feds?

As Hansell points out, no decision will be made until after additional rounds of litigation. He thinks that states such as Indiana, however, will feel compelled to be bound to state law for administration of these services.

Of course, more litigation will occur until finally, sometime over the next several years, a decision will be rendered, determining once and for all what is the law, who is bound by it and how it will be administered.

All of this confusion could have been avoided if the court had not involved itself in states’ political matters or even if it had upheld DOMA under the same logic that it upheld the Patient Affordable Care Act, i.e., there must be strong and compelling evidence and interest to overturn federal legislation, invoking the much misinterpreted and misunderstood power of judicial review.

Such abuse of federal judiciary power threatens to undermine the delicate institutional balance of power among the three branches of government. Probably as important and more alarming is the continued dismissal of the Tenth Amendment, that is: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The U.S. Constitution does not disallow states from instituting laws that define marriage. Yet, because of the intruding nature and character of the federal court system, we are witnessing the disintegration of true liberal democracy, meaning the preservation of rights and freedoms contained within the Constitution, or sustained over the decades by and through common cultural standards, and dedicated for the greater public good.

Democracy is not supposed to be shackled by the liberal elite who, through their power, influence and money, maneuver their way through state legislative halls and courtrooms, and force their limited agenda on the people as a whole.

Stephen M. King, Ph.D., an adjunct scholar of the Indiana Policy Review Foundation, holds the R. Philip Loy Endowed Chair of Political Science at Taylor University.



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