Monday, December 03, 2012

Same-Sex Marriage Amendment No Longer Sure Thing In Indiana

Supporters of a constitutional amendment that would write into Indiana's Constitution a ban on recognition of same-sex marriages or similar relationships for unmarried couples once viewed its enactment as a fait accompli, particularly with the election of  Republican supermajorities in both chambers of the General Assembly. Yet Republican leadership in the House and Senate are showing little enthusiasm in pushing the issue during the current legislative session, and Mike Pence, an outspoken opponent of same-sex marriage, no longer wants to talk to about the issue.

It's doubtful Republican leaders have had a change of heart on the issue. What has changed is public opinion towards the issue. Before the amendment becomes law, it must pass two consecutive sessions of the General Assembly and be approved by a majority of the state's voters. The measure easily passed the House and Senate during the last session, and supporters of the amendment undoubtedly have the votes to pass it through both chambers once again. What Republican leaders now are less certain about are the political implications of taking the debate to voters. In short, they no longer believe the issue is a net positive for them politically. In the 2012 election, opponents of same-sex marriage lost in all four states where the issue was on the ballot. In three of those states, Maryland, Minnesota and Washington, opponents had brought the issue before voters. In Maine, proponents successfully reversed an earlier vote against same-sex marriages. Recent polling survey in Indiana now shows the public is more divided than ever on the issue, whereas just a few years ago opponents far outnumbered supporters.

Given the current political climate, Republican leaders are now questioning what, if any, political advantage there is to putting the issue on the ballot in 2014 other than to drive turnout of voters who may be less inclined to support Republican legislative candidates because of the issue, particularly among younger voters, whose views are much more supportive of same-sex marriage than older voters. Indiana law already outlaws same-sex marriage, and there is further concern the language contained in the amendment backed by its proponents overreaches and causes unintended consequences. It not only includes the provision contained in current state law defining marriage as between one man and one woman but also adds language barring the legal recognition of similar relationships for unmarried couples, including opposite-sex couples. This has raised particular concern that the law could impact domestic partnership relationships that are currently recognized by many employers for employee benefits purposes. Proponents of the amendment also don't really have a case to make that a constitutional amendment is needed to prevent a state court from overturning it because the Indiana Court of Appeals has already upheld its constitutionality. If the state law is overturned by a federal court on federal grounds, a state constitutional amendment will make no difference.

I could be misreading what's going on in the minds of Republican legislative leaders. It wouldn't be a first for me. I won't be surprised, however, if they pass on taking up this contentious and unnecessary debate during the next legislative session where they have far more important fish to fry.


Karl said...

It may also reflect the fact that the Supreme Court just granted certiorari for challenges to several similar laws in other states. It may simply be that the General Assembly is hoping to avoid passing a measure that will be DOA if the Court rules that similar measures are unconstitutional.

Gary R. Welsh said...

Karl, According to the SCOTUS blog, the Court hasn't granted cert in any of the pending cases as of this morning.

Paul K. Ogden said...

Karl, I highly doubt the SCT would hear a case for the purpose of invalidating the marriage laws of about 45 states. Most likely, if the SCT grants cert, it will be to challenge a portion of the DOMA denying federal benefits to same sex marriage couples who are legally married pursuant to their state laws.

BayernFan said...

Conservaties, even social conservatives, should avoid using the constitution to enact policy. This issue is best left to the legislatures.

Bury this amendment and leave it be.

Karl said...

You gentlemen are correct. I thought I had read that they granted cert. I stand corrected.