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Monday, February 21, 2005

Ind. Law - [Revised] Gay marriage ban needs flexibility

"Gay marriage ban needs flexibility" is the title to the lead editorial today in the Indianapolis Star. The Star's position:

The state Senate should rewrite portions of a proposed amendment to ban gay marriage. * * *

Supporters of the amendment argue that it is necessary to guard against potential court decisions that would overturn the state's marriage law. Although the Indiana law was recently upheld, the concerns are understandable given the actions of courts in Massachusetts, New York and Vermont. * * *

Yet, the resolution as proposed not only would ban gay marriage but also shut off the possibility of civil unions. In that respect, the proposal goes too far.

Civil unions, or other legal arrangements that recognize the reality of gay relationships, do not yet exist in Indiana. And they may never be implemented here. But it's wrong for current lawmakers to block future legislators from at least considering some form of accommodation.

Senators appear determined to approve the resolution. Passage in the House also is almost certain. Before they act, however, lawmakers should carefully rewrite the proposal, ensuring that private benefits will not be affected and eliminating language that would block civil unions or other legal arrangements in the future.

The emotion invested in the debate over marriage is understandable. It is an institution, although battered by divorce and other shortcomings, that remains a cornerstone of a healthy society. Protecting that cornerstone is necessary and right.

The task must be approached, however, with caution and humility, understanding that current beliefs may one day yield to the customs of future generations.

Here is the link to SJR 007. The measure, after amendment in Senate Committee [oddly, the introduced version is not available online*], would add a new Section 38 to Article 1, Bill of Rights, of the Indiana Constitution, to read:
(a) Marriage in Indiana consists only of the union of one (1) man and one (1) woman.

(b) 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. [emphasis added]
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[Note that subsection (b) was amended in committee. The language in the introduced version was slightly different:

(b) Neither this Constitution nor any other Indiana law may be construed to confer marital status or any legal incidents of marriage upon unmarried couples or groups.] [emphasis added]

A Star story from last Wed., Feb. 16th, reported that the proposal had passed second reading that Tuesday and would now be eligible for passage in the Senate:
Tuesday, Sen. John Broden, D-South Bend, tried to change the wording. He said the second paragraph is unclear.

"This language is going to go into our constitution," Broden said. "We should know what it means."

He urged the Senate to change it to say that the only marriage recognized as legal in Indiana is the union of one man and one woman.

[Author Sen. Brandt Hershman, R-Monticello] argued that the second portion of the amendment is needed to prevent the courts from creating civil unions or, he said, a marriage by any other euphemism.

See also this Nov. 12, 2004 ILB entry on the legal issues raised by the passage of similar constitutional amendments by Kentucky and Ohio last November.
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* The main page for SJR 7 contains a link only to the most recent version of the proposed constitutional amendment, not any earlier versions, and also does not include links to the votes on the proposal, as is the case with bills. I'm told this is a decision of data processing people.

However, although the link to the introduced version is no longer posted, the introduced version is still available if one saved the initial link to it, as attorney Doug Masson of Masson's Blog has. He was kind enough to send it to me: http://www.in.gov/legislative/bills/2005/PDF/RES/SJ0007.1.pdf

Posted by Marcia Oddi on February 21, 2005 07:46 AM
Posted to Indiana Law