Indiana's Religious Right Plans To Stoke California Decision

Not than anyone should be surprised, but Eric Miller and the rest of the usual suspects are using the occasion of the California Supreme Court's decision this week, overturning a state law defining marriage as between one man and one woman and opening the door to the legal recognition of same-sex marriages in that state, to recharge efforts in Indiana to enact a constitutional ban on same-sex marriages. Ergo, we're going to make it a big issue in this year's campaign. The Star's Mary Beth Schneider writes:

House Minority Leader Brian Bosma, R-Indianapolis, said Republicans will be working hard to let voters know that the success of the amendment "very much depends on who controls the legislative process."

Turner said he plans to try again in the next session, which begins in January, to get an amendment through the legislative hurdles. In Indiana, a proposed amendment must be passed by two separately elected legislatures and then approved by voters in a statewide referendum.

An amendment banning same-sex marriage passed the Indiana Senate and House in 2005, when Republicans controlled both chambers. But Democrats won control of the House in the 2006 elections. Although several Democrats joined most Republicans in supporting the measure, it never came up for a vote because the amendment died in the House Rules and Legislative Procedure Committee in 2007 and 2008.

"This will be an election-year issue," promised Eric Miller, who has lobbied hard for the amendment as head of Advance America. "We'll be distributing hundreds of thousands of voter guides letting people know how candidates from legislator to governor stand on this issue."

As a Republican, let me announce right now: If this issue is put front and center by House Republicans and others within the Republican Party this year as promised by Bosma, you can bet on a loss of several Republican seats this year, advancing Democratic control over that body. People are fed up with this issue being put ahead of far more pressing issues. It will be particularly harmful to the Republican Party in Marion County. It would also be a big mistake for Gov. Daniels to introduce this as an issue against Jill Long Thompson. Here's what Daniels said on the subject:

Asked Friday about the California decision, Gov. Mitch Daniels said that as a voter, he'd vote for an amendment banning same-sex marriage.

"Whether it's this issue or some other, it's unfortunate when judges rip decision-making out of the hands of the people," Daniels said.

And now, here's what Thompson said on the subject:

The Democratic nominee for governor, former U.S. Rep. Jill Long Thompson, Fort Wayne, said she opposes the constitutional amendment and would oppose it if it makes it to the general election ballot, something that couldn't happen until 2012.

"We already have a statute that is very clear that marriage is between one man and one woman," Long Thompson said, adding that she supports civil unions for same-sex couples.

Long Thompson said this may be a campaign issue, noting "people will raise all kinds of issues."

Miller, she said, "works to be very divisive, and he really ought to be putting his effort into what matters, and that is helping families to have opportunities for good-paying jobs."

Thompson hits the nail right on the head. It's the economy, stupid!

Every single legal scholar worth his or her salt in this state knows damn good and well Indiana will never overturn this state's Defense of Marriage Act, which has been on the books for more than a decade and upheld as constitutional in Morrison v. Sadler. A key difference between Indiana and California equal protection jurisprudence is the standard the courts apply in the two states to determine the constitutionality of a statute. California applies a strict scrutiny analysis; Indiana applies a rational basis test. Schneider references my point on this subject in her article today, although she inverted my reasoning, and includes a quote from IU Bloomington law professor Daniel Conkle. Schneider writes:

Republican Gary Welsh, an Indianapolis attorney who runs a blog called Advance Indiana, said Indiana's courts use a very different and much tougher standard to determine the constitutionality of a law than California's courts do. Here, he said, the court is very deferential to the legislature.

Besides, he said, the 2005 Court of Appeals decision found no fundamental right to marriage in Indiana's Constitution -- a completely different finding than in California.

Daniel Conkle, a law professor at Indiana University-Bloomington, said Indiana's courts traditionally have been more cautious than those in California and some other states.

While Indiana's high court "theoretically" could rule in some future case that same-sex marriage is legal in Indiana, Conkle said, "I'd say it's unlikely."

Again, it's California which applies the tougher standard. Indiana's rational basis test, which is highly deferential to legislative enactments, makes the task of declaring a state law unconstitutional much tougher.

The real issue of concern in Indiana should be focused on the breadth of the same-sex marriage amendment proposed by Miller and Turner. A Michigan Supreme Court ruling recently demonstrated the real consequences of the additional language in that second paragraph expanding the reach of the amendment to include "the legal incidents of marriage." In Michigan, that means that domestic partner benefits offered by the state's colleges and local governments are unconstitutional according to their Supreme Court's interpretation of its constitutional amendment. If Indiana enacts SJR-7 as proposed, you can bet that and other issues will be litigated to the detriment of all unmarried couples, straight and gay.