The state of Indiana filed an amicus brief with 14 other states in the Gill case, which challenges Section 3 of the Defense of Marriage Act. The case has reached the Supreme Court through petitions for certiorari by the Bipartisan Legal Advisory Group (BLAG), which is defending the law on behalf of House Republicans after the Justice Department decided it would no longer defend Section 3, and through a petition by the Justice Department itself. The state of Massachusetts, whose case is consolidated with Gill at the appellate level, has also filed a petition for certiorari.
Indiana, Alabama, Alaska, Arizona, Colorado, Georgia, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota, Texas, and Virginia signed onto the brief, which is largely based on the argument that “procreation” is a rational basis for the Act and for state marriage laws, as well.
The argument eviscerates the need for marriage for couples who are sterile, too old to procreate, make an a priori choice to not have children, and it negates the concept of families created by couples (of any gender) through adoption. Therefore, if the Court were to rule in favor of DOMA on the grounds that marriage is for procreation, then all other classes of non-procreative families should also be denied marriage certificates and should only be allowed to be joined in civil unions, or not at all. Further, their argument ignores the more than 1400 financial and legal rights that adhere to marriage, but not civil unions, under federal (and many state) laws.