Sunday, November 12, 2006

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.


Jeff Newman said...

It's kind of a double edged sword. On the one hand, as you would prefer, it may be advantageous to have the thing go through like it is on the hopes it is so broad that the voters reject it or it doesn't survive a legal challenge.

On the other hand, it can be argued that the longer it can be dragged out the more likely its defeat no matter what form it takes, as the movement on this issue has been in our favor, and polls indicate that this trend will continue as younger generations reach voting age.

While your position has merit, Gary, it does present us with a nasty worst case scenario: the Draconian version of the amendment goes to the voters in 2008, passes, and survives all subsequent legal challenges. Ouch.

Gary R. Welsh said...

I don't know, Jeff. Did you see some of those vote totals for the ballot initiatives this year. Only South Dakota was close among the 7 states adopting. If a liberal state like Wisconsin can't muster anymore than 42% to vote against it, we can't expect a much better result here. The votes in Arizona and South Dakota aren't a good comparison--since there is a strong libertarian sentiment in both of those states.

Marla R. Stevens said...

Without actual data, it's just guessing but the best guess is that, no matter what version of this is put before the Hoosier electorate, they'll pass it. I'm of the opinion that, if hets want to hurt us enough that they'll vote to hurt themselves in the bargain, who am I to stop them -- so I favor not messing with the amendment -- merely using the opportunities the presence of it presents us to continue the discussion because discussion favors us in the long run.

It's not the amendment that's the issue, after all. It's both the state and federal Denial of Marriage Acts (DOMAs). It's that the opponents of civil marriage equality know that, if bigotry were not at play in constitutional interpretation, the right of same-sex couples to civil marriage would be secure and that they need a constitutional amendment to obstruct that should the courts wake up to that fact.

But that will be only a slowing tactic in the path of justice in the end for, by the time the generation of today's youth become the power generation of tomorrow, there will be the will to both repeal the DOMAs and whatever amendments have been put in place to secure them -- if we do not let the discussion die and continue to press for justice.

We have made more progress faster than any civil rights movement in history. If we keep things going at this pace, I may even be lucky enough to experience the day when the people and their policymakers actually honor the Pilgrims'* intent regarding the separate existence of religious and civil marriage and stop making like there's a state religion that we all must kowtow to in order to obtain access to the civil institutions of our society.

As for Wynn Moses' claim that "we all agree with the one-man, one-woman concept for marriage", I caution that such smug het supremacy does not become anyone with an eye to his legacy.

*The Pilgrims left England in part because they did not appreciate having to be married by the Church of England for their marriages to be considered legal. In their interim stay in the Netherlands before making the Atlantic crossing, they delighted in the Dutch separation of church and state -- including in marriages/weddings -- and brought that with them to the New World. In fact, in the early days of the colony, only civil marriages were performed as they could not afford to bring clergy over until they were well-established.

Gary R. Welsh said...

I'm glad we found something we can agree upon, Marla.