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Monday, March 19, 2007

Ind. Law - More on: "House to consider gay marriage amendment"

Today's story by Bill Ruthhart in the Indianapolis Star, headlined "A battle for benefits: Gay couples worry amendment to ban same-sex marriage could cut out domestic-partner coverage," includes this quote:

At Wednesday's hearing, Indiana Equality, a gay-rights group that has led the charge against the amendment, is expected to point to a recent Michigan appeals court ruling. That decision found Michigan's public employers could not offer domestic-partner benefits because of the state's constitutional amendment banning same-sex marriages.

Hershman said that the language in the Michigan amendment is "unique and much more aggressive" than Indiana's, and that a similar court decision could not happen here.

A side-bar compares the language of the two amendments:
Here is the constitutional amendment banning same-sex marriage adopted by Michigan and the one proposed for Indiana.

• Michigan: "To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose."

• Indiana: "Marriage in Indiana consists only of the union of one man and one woman.

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."

What about another adjoining state where a similar constitutional amendment has caused controversy? Here is the language of the pertinent Ohio constitutional provision:
Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.

This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

This article titled "Gay marriage ripe for decision in 3 courts," from Stateline.org, updated March 1, 2007, includes this information:
The same-sex marriage controversy also is breeding a host of legal issues beyond the question of whether gays should be granted marriage licenses.

Cases in Michigan and Ohio question whether those states’ constitutional same-sex marriage bans might have unintended consequences. In February 2007, a Michigan appeals court held that the state’s ban prohibited public universities, state agencies and local governments from offering health insurance to partners of gay and lesbian employees. In Ohio, two lower courts cited the state’s gay marriage ban in denying protection under domestic violence laws to unmarried couples.

Michigan and Ohio are among 17 states whose constitutional gay-marriage bans are written broadly and go beyond defining marriage as a union between a man and a woman to potentially prohibiting other spousal rights.
There has been quite a bit of litigation in Ohio on the meaning of the second sentence of its recent constitutional amendment. Oral arguments have been held before the Ohio Supreme Court in one case, State of Ohio v. Michael Carswell, relating to a lower court ruling holding the domestic violence law constitutional despite the new constitutional provision. Here is the docket for the case. There is apparently a split in Ohio among the appellate courts - this decision, State v. Shaffer, from the 3rd Circuit held that the domestic violence statute violates the Ohio Constitution, because of the recent "defense of marriage" constitutional amendment. [Thanks to the Cleveland Law Library Weblog]

From an NPR Report from Dec. 27, 2005: " An Ohio lawmaker is suing Miami University, charging that its policy of offering benefits to employees' same-sex domestic partners violates an amendment to the state Constitution banning civil unions. Ohio is among a growing number of states where public colleges offering such benefits face legal challenges."

According to another Cleveland Law Library entry, dated Nov. 21, 2006 (nearly a year later), however:

The judge granted summary judgment to Miami University and other defendants in the lawsuit filed by Ohio Rep. Tom Brinkman. The lawsuit claimed that the University's benefits to same sex partners violated the "gay marriage" amendment to the Ohio Constitution, Article 15, Section 11. The Butler County Common Pleas Court found that the plaintiff did not demonstrate taxpayer standing. Although his complaint asserted he paid tuition to the University, he did not argue this as a basis for standing in his response to defendants' motion for summary judgment.
What does all this mean? What it means to me is: The fact that people disagree about what the proposed language means should be more than enough to keep that language out of the Constitution, for heavens sake!

For more, see these two ILB entries from April 4, 2005 and March 24, 2005. And here from Feb. 2, 2007 is ILB discussion of the Michigan Court of Appeals ruling that "Public universities and state and local governments would violate the state constitution by providing health insurance to the partners of gay employees."

Posted by Marcia Oddi on March 19, 2007 12:52 PM
Posted to Indiana Law