Sunday, August 25, 2013
Indiana Law - Indiana newspapers speak out on marriage equality, plus some observations from the ILB
Updating this ILB post from August 21st and this one from August 22nd, here are some quotes from recent editorials about HJR 6, which would add a prohibition against gay marriage to the Bill of Rights of the Indiana Constitution. [The ILB has highlighted two statements, with comments at the end of this post.]
From the Evansville Courier & Press, posted Aug. 23rd:
Lilly and Cummins plus other supporters of the new alliance recognize the importance of making Indiana a business friendly state for gays, lesbians and transsexuals. Indeed, if Indiana further shuts its door to gays and lesbians, it sends a message that skilled, talented workers and companies owned by gays, lesbians and transsexuals are not welcomed in Indiana, a state that needs new jobs. Indiana has no business attempting to drive jobs, businesses and industries away to other states.From the Aug. 23rd Indianapolis Star:
According to the Associated Press, Lilly executive Ron Smith said, “We really need to recruit the very best and the very brightest. We think writing this language into the state’s highest legal document will provide a barrier to those efforts.”
The AP said about 62 percent of Fortune 500 companies offer same-sex domestic partner health benefits. The AP obtained that information from the Human Rights Campaign.
As we have said, statutory law already bans same sex marriage in Indiana, so to us, the proposed constitutional ban constitutes piling on by opponents of gay marriage.
In addition, the proposed Indiana constitutional amendment would also ban civil unions by same-sex couples.
Of course, backers of the proposed constitutional amendment has its own heavy hitters, among them Gov. Mike Pence, who billed himself as the “jobs” governor. We fail to see how discouraging some workers from coming to Indiana is a pro-jobs effort.
The battle over marriage in Indiana has ramped up with the launch of a bipartisan, business-backed coalition that will work to stop House Joint Resolution 6, the proposed constitutional amendment banning same-sex unions.From the Sunday, August 25th Fort Wayne Journal Gazette:
We wish the Freedom Indiana campaign well, but still hope that Hoosiers will be spared the “expensive and very divisive” ordeal that an Eli Lilly and Co. executive predicts will unfold if the General Assembly insists on pushing the constitutional ban.
Same-sex marriage already is forbidden under state law. That statute has withstood court tests and is not susceptible to legislative repeal in the foreseeable future. To go further, to carve the ban into the state constitution and subject the state to a bruising referendum process in doing so, would serve no good purpose.
Indeed, in the eyes of many business, political, academic and religious leaders, stamping Indiana as unfriendly to gay people may do harm in many ways. * * *
Also of note is the bipartisan nature of the Freedom Indiana effort. Both Republicans and Democrats attended the kick-off event on Wednesday. And a Republican, Megan Robinson, with experience working for Sen. Dan Coats and U.S. Rep. Luke Messer, will manage the campaign. Old notions about a liberal-conservative split on this issue are no longer necessarily true.
A Ball State University poll taken last year showed Hoosiers were evenly split on same-sex marriage; but 54 percent opposed the amendment and 55 percent favored civil unions. The legislature and governor should heed the people, let HJR6 die and move on to far more productive work.
True threat to liberty of HoosiersSome observations from the ILB:
“The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”
– Article 1, section 23, Indiana Constitution
“Liberty” and “freedom” are highly prized by tea party activists promoting fiscal and social conservatism. They work as well for the broad coalition formed to defeat a proposed ban on gay marriage.
Coalition members recognize that writing restrictions of individual rights into the Indiana Constitution is contrary to founders’ intentions. Freedom Indiana rightly acknowledges that a statewide referendum aimed at amending the constitution threatens the guarantee for rights to be enjoyed equally by all.
In June, the U.S. Supreme Court struck down a federal prohibition on benefits for legally married gay couples, but left it to individual states to define marriage. Indiana law already defines marriage as between a man and woman; the amendment is unnecessary. House Joint Resolution 6 proponents argue it is needed to protect the sanctity of marriage.
The legislative odds are poor for opponents of the amendment. Gov. Mike Pence supports it. After the court ruling, Senate President Pro Tem David Long, R-Fort Wayne, and House Speaker Brian Bosma, R-Indianapolis, pledged to take up the measure quickly in January.
Freedom Indiana kicked off its campaign last week in hopes of blocking the second vote the resolution requires to be placed on the ballot. Organizers have the support of two of Indiana’s highest profile corporations, Eli Lilly and Co. and Cummins Inc.
(1) Re the statement: "Same-sex marriage already is forbidden under state law. That statute has withstood court tests and is not susceptible to legislative repeal in the foreseeable future."
In Ruth Morrison, et al. v. Sadler, a 42-page, Jan. 20, 2005 opinion of the Court of Appeals, Judge Barnes (with J. Kirsch concurring and J. Friedlander concurring in result) wrote for the three-judge panel:
Conclusion. What we decide today is that the Indiana Constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document. Nevertheless, Indiana’s DOMA, Indiana Code Section 31-11-1-1, does not violate Article 1, § 23 of the Indiana Constitution because opposite-sex marriage furthers the legitimate state interest in encouraging opposite-sex couples to procreate responsibly and have and raise children within a stable environment. Regardless of whether recognizing same-sex marriage would harm this interest, neither does it further it. The ability of opposite-sex couples to reproduce “naturally” and unexpectedly is the characteristic that rationally distinguishes them from same-sex couples. For much the same reasons, Section 31-11-1-1 also does not violate Article 1, § 12 of the Indiana Constitution. Finally, the Plaintiffs have failed to establish that they enjoy a “core value” right under Article 1, § 1 of the Indiana Constitution to marry each other and receive accompanying government benefits that is materially burdened by Section 31-11-1-1, even if Article 1, § 1 is currently capable of independent judicial enforcement in this context, which is doubtful. Section 31-11-1-1 does not run afoul of the Indiana Constitution and we conclude the trial court properly dismissed the Plaintiffs’ complaint because they failed to state a claim upon which relief could be granted.The decision, with its emphasis on "responsible procreation," was not appealed to the Supreme Court, reportedly for strategic reasons.
(2) Re the editorial's statement: "The statute .. is not susceptible to legislative repeal in the foreseeable future"; in fact the statute, IC 31-11-1-1, could be repealed by the upcoming session of the General Assembly, if the members of the legislature so choose.
(3) Re the statement "In addition, the proposed Indiana constitutional amendment would also ban civil unions by same-sex couples."
Until the SCOTUS rulings this spring, the fact that HJR 6 would ban not only same sex marriage but also civil unions and perhaps more (" A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.") was a strong argument against its passage. Michigan's similar provision, which became part of its constitution in 2004, has been in litigation ever since.
There has been pressure to amend the proposed language to remove this second sentence. But that would mean the constitutional amendment would need to start over, as it has already passed one of the necessary two General Assemblys.
This Friday on Indiana Week in Review there was discussion of the "slow it down" strategy, which is being pursued by opponents of the constitutional amendment -- urging the removal of the second sentence, which would mean starting over, because a proposed constitutional amendment must pass two General Assembly with precisely the same wording, thereby adding several years before the proposal would go before the people. By then, the reasoning goes, the Indiana voting public may be more favorable to marriage equality.
But, as things stand now, that reasoning no longer holds. As the ILB first wrote on June 29th:
One of the strongest objections that has been voiced to HJR 6 is that this second sentence of the proposal could also be interpreted to ban civil unions:Currently, various law suits are challenging this, most notably in Connecticut, which has a civil union law, but prohibits same sex marriage. Illinois is another such state.A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.It has been argued that such language in the constitution would prevent any future legislature from approving civil unions "that would give gay couples the same rights and benefits as married couples," and that therefore the pending HJR 6 should be rewritten to eliminate that sentence. To do so, however, would mean the proposal would have to start anew in the General Assembly and identical versions would need to be passed by two different General Assemblys before the proposal could be submitted to the voters. That was a good argument until Wednesday, when Windsor issued. Now it is meaningless. As this post began: The SCOTUS decision this week invalidated DOMA’s Section 3, and recognizes state same sex marriages for the purpose of federal benefits. "Civil unions" are not mentioned.
For more on this, see this Aug. 15th post from Prof. Sarah R. Boonin, Suffolk University Law School, who writes in part:
Before Windsor there were two classes of marriages: 1) heterosexual marriages, which enjoyed full state and federal recognition throughout the U.S., and 2) same-sex marriages, which enjoyed full state recognition (in the dozen states that recognized same-sex marriages at the time) but no federal recognition. During oral arguments in the case, Supreme Court Justice Ruth Bader Ginsburg disparaged the second-class status of same-sex marriages as a "skim-milk marriage" situation, suggesting that equality compelled the federal government to offer same-sex marriages the "whole-milk" treatment that it offered heterosexual marriages. Yet after Windsor, there are no fewer than three classes of marriages: 1) heterosexual marriages, which enjoy full state and federal recognition; 2) same-sex marriages with "full" state and federal recognition, like the marriages of same-sex couples living in marriage-equality states; and 3) same-sex marriages with no state recognition but some federal recognition, like the marriages of same-sex couples who marry in marriage-equality states but live in marriage-discrimination states. If you include domestic partnerships and civil unions (like those in New Jersey), then you have a fourth class of same-sex "marriages" that enjoy some (but not always all) state recognition and some (but not all) federal recognition.See also this August 5th post from law Prof. Will Baude, Stanford, the most recent of several posts he has written on civil unions and federal law.
So the meaning of "marriage equality" differs now (as much as ever) based on where a same-sex couple lives. Without question, virtually all same-sex marriages enjoy greater federal recognition today than before Windsor, but the "skim-milk marriage" problem that so offended Justice Ginsberg is unresolved. In some ways Windsor simply reversed the problem, trading in skim milk for half and half. No longer are state-sanctioned same-sex marriages invalid under federal law. Now, federally sanctioned same-sex marriages are invalid under some state laws!
Posted by Marcia Oddi on August 25, 2013 02:20 PM
Posted to Indiana Law