Indiana State Flag

The new rainbow flag?

This week, the State of Indiana announced its settlement with Alisha Brennon, a relatively anonymous citizen, whose spouse was crushed to death in the collapse of a stage at the Indiana State Fair. What is remarkable about this settlement is that for the first time, the government of IN is treating same-sex spouses the same as different-sex spouses.

Brennon and her spouse entered into an official civil union in the state of the Illinois, so her relationship was on record in some way. However, Indiana’s DOMA law (NOT the federal DOMA law signed by Clinton in 1996; this is the state version that the Indiana legislature passed) limits the recognition of marriage to one man and one woman. So what happened here (not that i’m complaining!)?

What a lot of legislators usually fail to realize (assuming positive intent, here!) in their rush to “protect the sanctity of marriage” is that there are so many rights and privileges that extend to couples beyond that grand day at the church. What offends them so greatly is the sacremental rites of marriage being corrupted by two people who were never meant to have them; what the legislators get instead for their trouble is creating this monstrous system that SHOULD systematically deny this poor woman WHO WATCHED A STAGE CRUSH HER SPOUSE TO DEATH from any kind of recompense at all while providing the very same monetary payment to heterosexual couples in the same situation. Nobody ever thinks of these things when they’re writing these god-awful laws.

Kudos to the Indiana Dept. of Ag or whomever is paying this settlement for awarding it fairly to everybody who lost a spouse. It is not common at all that a state treats an out of state civil union as superior to its DOMA law, or at least grants gay couples an equal footing in regards to some aspect of state family law. The State of Indiana is trailblazing in setting aside what SHOULD happen (deny the settlement bc of DOMA) for what MUST happen (treating everyone equally).

The legally interesting thing about this settlement, beyond the fairness issue of the cash settlement, is the potential ramifications down the line from this decision. If you try to sue somebody today for telling a joke with a lot of swear words in it (assuming not at work, just a random person on your bus, lets say), the judge will throw the case out because the swearer, while socially inappropriate, has not committed any action that you can sue for.

The very same thing could happen when Brennon brings her case against the company who owns the stage rigging, the employers of the construction crew who set up the stage, and anybody else that was not a part of the government settlement (oh, yeah, you can sue anybody who was involved, make private deals on the side with individual defendants, etc). these companies will argue that right now, she does not have the right to sue on behalf of the poor victim because she isn’t legally her spouse under Indiana law. the law doesn’t let her sue because some stranger (what her spouse was to her under DOMA) got killed because they set up a stage that killed a bunch of people. if the judge is a stickler for literalism, then s/he must bounce this case out of court, and poor Ms. Brennon gets nothing.

What’s going to get interesting really quickly is if the judge hearing the case says “well, in its settlement, the government treated her like a legal spouse, so i’m going to, too.” in the event that that happens, we might see a thorough unraveling of the “defense” of the DOMA laws beyond the issuance of marriage certificates. at that moment, a whole host of rights could potentially become available to an indiana couple who goes to new york city for a marriage and honeymoon the minute they get back home to indianapolis.

What I think/hope this situation highlights is the absolute moral reprehensibility of these DOMA laws. whatever the intentions of the framers of this legislation, the effects it has wrought are grotesquely limiting in real life application. i like to imagine the conversation at the indiana commission handing out these settlement checks going along the lines of something like, “if we don’t treat her the same, all hell is going to break loose when this gets out.” i don’t know too many people who would be willing to take the “teeeeechnically, they aren’t legally spouses!” argument when there’s youtube footage of the poor woman’s life ending in a freak accident. and rightly so.

For anyone against gay marriage, THIS is what we’re talking about when we say separate but equal is unequal. it isn’t a slogan; it actually means treating us as a different category leads to unequal results. and that’s just not fair.


About Josh Hartsell

34, 3L law student, Boren Fellow in Korea, internationalist, former ex-pat.

One response to “Fair”

  1. Jim says :

    She is “analogous to a spouse” for purposes of making a tort claim. Go Indiana, blazing a trail for civil rights. I’m proud of my state.

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