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Wednesday, February 04, 2004

Indiana Law - Gay Marriage and Civil Unions Update

The Supreme Judicial Court of Maine ruled today, as reported by the Massachusetts Lawyers Weekly, "that only full, equal marriage rights for gay couples -- rather than civil unions -- would meet the edict of its November 'Goodridge' decision, erasing any doubts that the nation's first same-sex marriages would take place in the state beginning in mid-May." Here is the Court's opinion. [Update: Here is a better version.] Note that it appears to be an advisory opinion, an answer to a question propounded to them by the Massachusetts Senate about a pending piece of legislation, and begins:

To the Honorable the Senate of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit their answers to the question set forth in an order adopted by the Senate on December 11, 2003, and transmitted to the Justices on December 12, 2003. The order indicates that there is pending before the General Court a bill, Senate No. 2175, entitled "An Act relative to civil unions." A copy of the bill was transmitted with the order. As we describe more fully below, the bill adds G. L. c. 207A to the General Laws, which provides for the establishment of "civil unions" for same-sex "spouses," provided the individuals meet certain qualifications described in the bill.

The order indicates that grave doubt exists as to the constitutionality of the bill if enacted into law and requests the opinions of the Justices on the following "important question of law":

"Does Senate, No. 2175, which prohibits same-sex couples from entering into marriage but allows them to form civil unions with all 'benefits, protections, rights and responsibilities' of marriage, comply with the equal protection and due process requirements of the Constitution of the Commonwealth and articles 1, 6, 7, 10, 12 and 16 of the Declaration of Rights?"

The Court's November 18, 2003 ruling in Goodridge v. Department of Public Health is available here. The Mass. Lawyers Weekly also has a FAQ about the Goodridge decision.

Last month the Indiana Law Blog posted this overview of what was going on in the various states. [Note - be sure to use your browser's back key to return, as this link is on the old site.]

Since then, the Indiana General Assembly has moved on the constitutional amendment front. As reported here today in the Louisville Courier-Journal:

The Senate voted yesterday to amend the Indiana Constitution to ban same-sex marriages, but the proposal is unlikely to gain much traction in the House. The amendment, Senate Joint Resolution 7, passed 42-7. * * *

Indiana law already defines marriage as the legal union of one man and one woman. The state also passed a "defense of marriage" law in 1997 that says Indiana does not recognize same-sex marriages or civil unions that take place in other states.

But last year a group of homosexual couples sued the state, asking for the right to marry. A Marion Superior Court judge dismissed the case, saying state law defined marriage as one man and one woman, but the group has appealed. * * *

However, Democrats who control the Indiana House have refused to hear a similar proposal by state Rep. Dennis Kruse, R-Auburn, even though a majority of the chamber's members have signed on as co-authors.

House Rules Committee Chairman Scott Pelath, D-Michigan City, said the proposal "is not a priority" for the House. A handful of senators yesterday agreed.

This story in the South Bend Tribune today reports:
[T]he vote followed the trend set by Indiana's original "defense of marriage act," which also bars marriage by homosexuals. That law is being challenged in the Indiana Court of Appeals, and a similar measure was overturned last year by Massachusetts' highest court. The Massachusetts decision is not binding outside of that state.
Meanwhile, in the Indiana House, according to this story reported Jan. 30, 2004 in the Indianapolis Star:
A majority of lawmakers in the Indiana House want to amend Indiana's Constitution to ban same-sex marriage and are urging House leadership to let the matter come up for a hearing and vote. House Speaker B. Patrick Bauer, D-South Bend, said that won't happen this session. "It is not a critical issue," Bauer said. "It is not an emergency."

But the House author of the proposed amendment, Rep. Dennis Kruse, R-Auburn, says that's exactly what it is. * * * Five Democratic lawmakers have joined with all 49 Republicans in the 100-member House as co-sponsors of Kruse's proposal, House Joint Resolution 6. Kruse is proposing a one-sentence addition to the state constitution: "Only marriage between a man and a woman is valid in Indiana." To be added to the constitution, it must pass two different General Assemblies and then be approved by Hoosier voters.

Earlier ILB coverage of the challenge to the current Indiana statutory provision may be found here, here and here. [Again, these links lead to the old site, so use your browser's back key to return.]

[Update 2/5/04] Coverage today of the Mass. court's advisory opinion includes: Charles Lane's report in the Washington Post; the LA Times story, available here, headlined "The landmark court ruling makes it the first state to uphold full marriage rights for same-sex couples, not civil unions and similar separate arrangements;" this story from the NY Times; and extensive coverage from the Boston Globe, including stories titled "Court deems civil unions insufficient," and "Justices' opinions reveal deep division."

Posted by Marcia Oddi on February 4, 2004 12:51 PM
Posted to Indiana Law