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Thursday, February 01, 2007

Ind. Law - Same sex marriage amendment advances [Updated]

This ILB entry from two years ago (March 24, 2005), titled "Ind. Law - Impact of same sex marriage ban in Ohio and Michigan Constitutions may portend Indiana issues," is just as relevant this morning. (See also this list.)

Today there are a number of stories about SJR 7 passing out of Senate committee. Bill Ruthhart, writing for the Indianapolis Star, reports at length in a story including a valuable sidebar showing who voted for and against the amendment, and "what's next." Much of the testimony yesterday was focused not on subsection (a) of the proposed addition of a new Section 38 to the Indiana Bill of Rights, which would provide that "Marriage in Indiana consists only of the union of one man and one woman," but on subsection (b), which would provide:

This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
There was testimony back and forth about whether this subsection would prevent the General Assembly from legalizing civil unions, or conferring other rights. More from the story:
Many opponents focused on that language, saying it could corrupt the intent of domestic violence and health-benefit laws that apply to all unmarried couples, and they pointed to the fallout from similar proposals in Ohio and Michigan.

In Ohio, the result has been a legal debate about whether the state's domestic-violence laws apply to unmarried couples. In Michigan, public universities and municipalities have faced lawsuits for offering domestic-partner benefits.

Opponents said they feared the same would happen in Indiana if the amendment is approved this session and adopted by voters next year.

Proponents were unswayed. "In my judgment, those claims are bogus," said James Bopp Jr., a Terre Haute attorney who specializes in constitutional law. Bopp said the Michigan and Ohio amendments are different because they prevent legislatures in those states from recognizing, in any law, couples who aren't married.

The Indiana amendment, he said, would prevent the courts only from allowing unmarried couples to receive marriage benefits. He said legislators also still could pass laws granting those privileges to unmarried couples.

Bopp also told lawmakers that adoption rights and domestic-partner benefits offered by state universities would be unaffected by the amendment. And he said Indiana's domestic-violence law would continue to apply to all.

Kerry Hyatt Blomquist wasn't so sure. An attorney for the Indiana Coalition Against Domestic Violence, Blomquist urged the committee to vote against the amendment. She said that if the amendment passes, courts could decide that the state's domestic-violence laws apply only to married couples.

Lesley Stedman Weidenbener of the Louisville Courier Journal reports:
The General Assembly initially approved the marriage-ban proposal two years ago. If it passes again in exactly the same form, it will go on the general election ballot in 2008 for final approval.

The proposed amendment has two parts. First, it defines marriage as the union of one man and one woman. The second part says that state law "may not be construed" to provide the "incidents" of marriage on unmarried couples or groups.

The language in the second part is what proved the most controversial during yesterday's hearing.

Opponents called that provision vague and said it could be used to invalidate domestic-violence laws that pertain to unmarried couples or a law that allows single Hoosiers, in addition to married couples, to adopt.

They also said it could nullify contracts between unmarried people, including many older Hoosiers, that address inheritance, health care and other legal issues.

Kerry Hyatt Blomquist, legal counsel to the Indiana Coalition Against Domestic Violence, pointed to problems in Ohio, where a recent constitutional ban on same-sex marriage has led to a court battle.

Several Ohio courts have ruled that the state's 1979 domestic-violence law doesn't apply to unmarried partners because the state's constitutional amendment gives their relationship no legal status. The Ohio Supreme Court is now considering the issue.

Blomquist said a similar situation in Indiana would be devastating.

"Fifty-two percent of domestic-violence victims are not married to their abusers," she said.

Walter Botich, president of the group Stop the Amendment, said similar problems could develop with other laws.

But Jim Bopp, an attorney who is active in state and federal election cases and anti-abortion cases, told senators that such claims "are bogus." He said the Indiana proposal's language is significantly different from that of Ohio's ban.

Bopp said the Indiana language would simply prevent a court from ordering marriage-like benefits for unmarried couples. But he said it wouldn't prevent the legislature from writing laws that allow unmarried couples to have specific benefits.

Mike Smithof the AP has a story here in the Fort Wayne Journal Gazette.

Jondi Schmitt of the South Bend Tribune has a story that begins:

In a hearing disrupted by protesters supporting same-sex marriage, the state Senate Judiciary Committee passed a joint resolution to amend the Indiana Constitution to provide that "marriage in Indiana consists only of the union of one man and one woman."

Wednesday's meeting marked the third time the issue was put before the state Senate. It passed during the 2005 session, but the proposed amendment must be agreed to by a second General Assembly and then confirmed by a majority of the state's registered voters to become effective.

"The point of this resolution is to move this issue, the definition of marriage as we have known it throughout the ages, out of the hands of the what is an activist effort to seek a judicial rewrite of the definition of traditional marriage," said Sen. Brandt Hershman, R-Wheatfield, the resolution's author.

One wonders: If the aim is to take the issue out of the hands of "activist" judges, then why amend the Indiana Constitution with language that is demonstrably ambigous, as illustrated by the conflicting opinions quoted in the stories above, and will require years of court interpretation, as has already proven to be the case in several of our sister states?

The cynical answer is that the supporters think that, once ratified, subsection (a) will stand, regardless of the certainty of major future court fights about the meaning of (b) and its impact on Indiana's citizens.

[Updated 10:58 a.m.] The Indianapolis Star makes a similar point today in its editorial opposing the amendment. A quote: "While supporters argue that it restricts judicial activism, the vagueness of the language makes this an open question."

Posted by Marcia Oddi on February 1, 2007 09:03 AM
Posted to Indiana Law