INDIANAPOLIS -- An attorney defended Indiana's ban on same-sex marriages before the state appeals court on Tuesday, saying the law was intended to protect children and represented the will of the public.
The court heard arguments in a lawsuit filed by three same-sex couples who want the same legal protections in Indiana offered to married people.
Thomas M. Fisher, a deputy state attorney general, said that marriage was intended historically to encourage men and women with children to stay together.
''The idea is to encourage both parents to be present to raise the child,'' Fisher said.
Because same-sex couples have to plan to have children -- by adoption or by medical procedures such as artificial insemination -- they do not need such encouragement, he said.
Marion Superior Court Judge S.K. Reid ruled in May that the Indiana law ''promotes the state's interest in encouraging procreation to occur in a context where both biological parents are present to raise the child.''
But Ken Falk, an Indiana Civil Liberties Union attorney who is representing the couples, appealed that ruling. He said the three same-sex couples who are named in the lawsuit could raise children just like married couples of the opposite sex.
''The founders weren't thinking about this,'' Falk said.
Attorney General Steve Carter said times might change, but the reasoning behind the law does not.
''Just because people popularly want something doesn't mean that rationale will change,'' Carter said.
Fisher said court should respect the decision made by legislators in approving the same-sex marriage ban.
Legislators in 1997 approved a law prohibiting the state from recognizing same-sex marriages, even those that take place in states where it is legal.
But appeals court Judge James Kirsch said a similar argument was used years ago about the Legislature representing the will of the public to prevent interracial marriages.
Falk said Indiana's law prohibiting same-sex marriage was unconstitutional because it limited the choices of homosexuals.
Fisher said homosexuals were not prohibited from choosing to marry as blacks and whites once were, even if they could not marry people of the same sex.
''There's no comparison to homosexuality and race,'' Fisher said.
Carter said that striking down the same-sex prohibition could undermine the Legislature's ability to prohibit other forms of marriage, such as polygamy.
The appeals court did not say when it would make a decision in the case.
The lawsuit was filed in August 2002 by Teresa Stephens and Ruth Morrison of Indianapolis; David Wene and David Squire of Indianapolis, who entered into a civil union in Vermont in 2000; and Charlotte Egler and Dawn Egler of Hendricks County, who also had a civil union ceremony in Vermont in 2000.
Indiana has more than 10,000 same-sex couples living together, according to the 2000 census.
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