Same-Sex Marriage Debate

Niki Kelly of the Fort Wayne Journal-Gazette reviews today likely issues to surface during the upcoming session of the Indiana General Assembly. Not surprisingly, the pending constitutional amendment to define marriage as between one man and one woman, and to deny recognition of any legal incidents of marriage to unmarried couples, is expected to be a hot issue. It is a foregone conclusion that the matter will be voted on during the upcoming session because House Speaker-elect Pat Bauer pledged to allow a vote prior to the November elections. Kelly writes:

Another social issue at hand is the constitutional amendment defining marriage as between one man and one woman, which effectively bans same-sex marriage.

Indiana law already does so but Republicans have pushed the amendment as a way to override what it sees as judicial activism.

The amendment passed its first vote in 2005 but lawmakers have to vote on it again this session because of state rules. Then it would go to the public for approval in a
2008 referendum.

Bauer has promised to call for a vote on the amendment – a departure from when he blocked the proposal in 2004.

But Bosma believes Democrats will try to change a word or two in the amendment, further delaying its passage.

“I would suspect that would be a strong point of contention during the session,” he said. Moses said he and others would like to strike the second sentence in the amendment, which says “Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.”

“I think we all agree with the one-man, one-woman concept for marriage. But the rest of that gets pretty mean and quite likely takes away rights for people for health insurance, hospital visitation and wills,” he said. “Things we really shouldn’t interfere with.”

Changing the wording would force the process to start over again, with legislature votes in 2007 and 2009 and a public vote in 2010.

Rep. Win Moses' (D-Ft. Wayne) comment that the controversial second paragraph of the proposed amendment should be struck has been at the heart of recent strategy discussions on both sides of the issue. Some proponents would like to see it struck because it clearly goes beyond the issue of gay marriage. Some opponents would like to see it struck because any change in the amendment would delay any vote on it for another two years. If it is approved as it is, it will go before voters for approval in 2008; it it is amended, the first time it could appear on the ballot is 2010.

From a purely legal standpoint, opponents of the amendment have a much stronger argument to challenge the amendment on U.S. constitutional equal protection and due process grounds if it is adopted in its current form because it deprives both gay and straight couples of rights beyond marriage. Litigation to date indicates that depriving only gay couples of the legal right to marriage is likely to be upheld on U.S. constitutional grounds. Legal successes in Massachusetts, New Jersey and Vermont have been based on state constitutional grounds.

As an opponent of the amendment, if it is going to be passed, I would prefer that it be approved in its broader form to provide some hope of striking it down as a violation of U.S. constitutional guarantees. The broader language also offers opponents a stronger argument to make to voters to oppose the amendment. It then becomes an argument about more than just gay marriage. Why would opponents of the amendment want to help the proponents make their discriminatory amendment more palatable to voters by amending out the second paragraph? The benefit of the two-year delay is not worth the loss of the arguments opponents will no longer have in its arsenal to use in the fight to overturn the discriminatory amendment.

Ballot initatives on the subject won in eight of nine states in this past week's elections. Only voters in Arizona rejected the amendment, and that was by a narrow margin. Arizonans are known for their libertarian streak. Wisconsin voters, where voters were voting on the broader amendment, easily approved a same-sex marriage ban as well. Opponents thought they had their best shot at defeating a ballot initiative this year in Wisconsin. The vote in South Dakota was much closer, but even voters there still approved a ban. Realistically, it is hard to see a different outcome in Indiana. The only question is whether the state's voters will be asked to vote on the broad or narrow language of the amendment.