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Sunday, May 18, 2008

Courts - More on "California Supreme Court says same-sex couples have right to marry"

The California Supreme Court decision Thursday finding that gays and lesbians have a constitutional right to marry in California (see ILB entry here) has led to two stories giving an Indiana take on the decision.

Mike Smith of the AP wrote May 16th:

INDIANAPOLIS - A California Supreme Court ruling allowing same-sex couples to marry in that state has renewed debate on whether Indiana should amend its constitution to ban gay marriage. * * *

Rep. Scott Pelath, D-Michigan City, who helped kill a prolonged, legislative effort aimed at amending the state constitution with a ban on same-sex marriage, noted that state law already bans gay marriage and that law was upheld by the Indiana Court of Appeals. * * *

Massachusetts in 2004 became the first and so far only state to legalize gay marriage. Twenty-six states have approved constitutional amendments banning same-sex marriage.

Doing the same in Indiana has been a contentious issue since 2004, when the Republican-controlled Indiana Senate passed a resolution to begin the process of amending the constitution to ban gay marriage. Democratic Rep. Patrick Bauer of South Bend, who was speaker at the time, denied attempts by Republicans to advance or even debate the resolution in the House.

Bauer said state law already banned gay marriage and said House Republicans were simply trying to create a false crisis and a divisive campaign issue. He has repeatedly made similar statements since.

Amending the state constitution requires a resolution to pass two consecutive, separately elected General Assemblies and then win approval in a statewide vote.

When Republicans controlled both chambers in 2005, they approved a constitutional resolution to ban gay marriage. But it still needed to gain passage in both chambers again in 2007 or 2008 and then be voted on by the people in the 2008 general election.

Democrats regained control of the House in late 2006 and Bauer became speaker again. In the 2007 session, Pelath gave the resolution a committee hearing after it had passed the Senate. The panel voted 5-5 on the resolution, so it failed to pass.

Some who voted against it said they were concerned about unintended consequences on domestic partner benefits or domestic violence statutes. Several Indiana companies have also spoken out against the proposal, saying it would send a message to prospective employees that Indiana is not welcoming or inclusive. [ILB - See note below.]

The Senate passed the resolution again this past session, but Pelath refused to give it a hearing. That meant the process of amending the constitution with a gay marriage ban would have to start all over again.

If a constitutional ban is passed in the 2009 or 2010 sessions, it would also have to pass again in either 2011 or 2012 to be eligible for a statewide vote in November 2012.

House Minority Leader Brian Bosma, R-Indianapolis, said the California ruling underscored a concern many lawmakers have about a handful of judges being able to decide one of the most fundamental elements of our social fabric instead of elected lawmakers and the people. He said his caucus still stands firmly for a constitutional ban on gay marriage.

Mary Beth Schneider of the Indianapolis Star reported May 17th:
As chairman of the Rules Committee, Rep. Scott Pelath, D-Michigan City, decided this year not to give the amendment a hearing, let alone a vote.

He said the California decision hasn't changed anything. He said he still thinks the amendment is not needed and that the issue of same-sex marriage is always going to be used as an election-year club.

"Folks want to bring up this issue because then they don't have to talk about the economy and gas prices," Pelath said.

But, he added, "never at any time in the history of the state have we set our compass by California."

Legal scholars said they still don't expect Indiana courts to do that.

Republican Gary Welsh, an Indianapolis attorney who runs a blog called Advance Indiana, said Indiana's courts use a very different and much tougher standard to determine the constitutionality of a law than California's courts do. Here, he said, the court is very deferential to the legislature. [See the blog entry here.]

Besides, he said, the 2005 Court of Appeals decision found no fundamental right to marriage in Indiana's Constitution -- a completely different finding than in California.

Daniel Conkle, a law professor at Indiana University-Bloomington, said Indiana's courts traditionally have been more cautious than those in California and some other states.

While Indiana's high court "theoretically" could rule in some future case that same-sex marriage is legal in Indiana, Conkle said, "I'd say it's unlikely."

See a list of ILB entries on the Court of Appeals decision in the case of Morrison v. Sadler here, and particularly this entry from Feb. 18, 2005, headed "Gay marriage ruling wll not be appealed to Supreme Court."

As recently as May 7th, in this ILB entry headed "Michigan Marriage Amendment Nixes Domestic Partners Benefits", problems have come to the forefront in other states with the language of constitutional amendments attempting to go beyond simply banning gay marriage.

Posted by Marcia Oddi on May 18, 2008 12:50 PM
Posted to Courts in general