Why Do These Legislators Insist On Barring More Than Same-Sex Marriages?

Indiana Defense of Marriage law found at I.C. 31-11-1-1 limits marriage in Indiana to those entered into between members of the opposite sex. The law, which has been on the books since 1997, also expressly voids a marriage between persons of the same gender, even if the marriage is considered lawful in the place where it was solemnized. Even though the Indiana Court of Appeals upheld the constitutionality of Indiana's Defense of Marriage Law in the 2005 Morrison v. Sadler decision, Indiana lawmakers have persisted in their efforts to enact a constitutional amendment to ban same-sex marriages for the past several years. The only thing that stopped the amendment from being approved by the legislature and placed on the ballot for consideration by Indiana voters was a Democratic-controlled House. With Republicans back in control of the House, efforts to pass an amendment have been renewed. Today, the House Judiciary Committee voted 8-4 along party lines to send HJR-6 to the full House for consideration, where it will most assuredly pass by a wide margin. The Senate, firmly in Republican hands, will also likely approve the amendment as it has on several occasions in the past. The amendment, however, must be approved by two successive elected legislatures, which means the first it could appear on the ballot would be 2014.

As they have in the past, the proponents of the amendment insist it is necessary to include a ban in the state's constitution to ensure that judges cannot overturn the state law that has already been deemed constitutional. As I've often explained, the standard established by the Indiana Supreme Court for a party seeking to overturn a law enacted by the legislature presents a very steep hill to climb--so steep that only a handful of laws enacted by our legislature have been deemed unconstitutional over the past 150 years. What has always bothered me is that the proponents of the amendment insist not only in adding language to the Indiana Bill of Rights limiting marriage to members of the opposite sex, but also including language that goes beyond what Indiana law currently provides.

The first sentence of HJR-6 is straight forward: "Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana." Mission accomplished. Right? Well, that's not enough for these folks. They insist on adding a second sentence to their amendment that arguably goes beyond barring same-sex marriages: "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized." Opponents rightfully express concern the plain language of the amendment goes beyond barring same-sex marriages. For example, Indiana courts have found enforceable domestic partner agreements both same-sex and opposite sex partners have executed without actually entering into a marriage to govern the respective rights the two parties have in property owned or acquired between and among them in the event one or both parties decide to end the domestic partnership. A number of governmental entities and businesses in Indiana extend health insurance and other benefits typically extended to the spouses and dependents of their married employees to domestic partners of employees who are not married. In either case, benefits normally associated with marriage are being extended to same-sex partners who are otherwise not legally allowed to marry in Indiana.

Who can say with any certainty that second sentence of the amendment will not be interpreted by a judge to bar the enforceability of domestic partner agreements or domestic partner benefits? Aren't opponents of the amendment equally justified in their concern about this second sentence as the proponents are that Indiana's Defense of Marriage law may be held unconstitutional if an amendment is not enacted? Again, I ask of the proponents, if the only thing you seek to accomplish with your amendment is to affirm the state law you fear a judge will overturn at some point in the future, then why include the second sentence? The answer is very clear to me. They don't want Indiana to recognize the right to domestic partner agreements or domestic partner benefits already enjoyed by many same-sex couples in Indiana. More importantly, they want to tie the hands of any future legislature that may want to recognize civil unions between members of the same sex as many states and countries already do, including neighboring Illinois.

Inevitably, the proponents insist the amendment is necessary to protect the "sanctity of marriage." I've never quite understood the argument that same-sex marriages would do any more harm to the institution of marriage than opposite-sex couples have already done to it. The fact is most marriages end in divorce, and  many persons enter and break their matrimonial bonds not just once but multiple times, often at a great societal and governmental cost because of the children born of those marriages. If they're really concerned about the "sanctity of marriage", perhaps they should resurrect the laws of the past that made it extremely difficult for couples to divorce. It makes about as much sense.