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Tuesday, January 21, 2014

Ind. Law - "Delicate path for gay marriage in red states"; What about Indiana?

WTHR13 yesterday picked up this long AP story by Brady McCombs and Nicholas Riccardi. Some quotes:

SALT LAKE CITY (AP) - Hours after federal judges struck down bans on same-sex marriage in Utah and Oklahoma, activist Evan Wolfson and his colleagues reached out to gay rights groups in the deeply conservative states with both congratulations and a reminder: Court wins alone won't be enough.

Wolfson knows the perils of judges forcing social changes on a population that isn't ready for them - he filed the first successful gay marriage lawsuit in the 1990s in Hawaii, and the backlash against that case convinced him to focus on the political process rather than litigation alone.

That strategy has helped lead to a stunning turnaround in public opinion on gay marriage and a series of electoral wins that laid the groundwork for the recent court rulings.

Now the movement faces its greatest test as foes complain that the recent decisions have leapt ahead of the public in those deeply red states and risk creating another Roe v Wade, where courts settle a divisive social issue but sow the seeds for prolonged conflict.

In both states, elected officials largely greeted the rulings with fury and gay rights groups are bracing for a series of proposals in the state legislature that could target their community. * * *

Gay marriage bans have also been struck down by courts in New Jersey and New Mexico, and a spate of new laws have passed in other states. In the seven months since the Supreme Court's landmark decision, the number of states allowing gay marriage has jumped from 12 to 17 with Utah and Oklahoma in limbo pending decisions by appeals courts. Gay marriage supporters argue the time is ripe for the lifting of bans nationwide by the Supreme Court.

John Eastman of the National Organization for Marriage in Washington, DC, which opposes same-sex marriage, said that the recent rulings courts disaster. "If they don't let it be fought out in the states, there is going to be an eruption," Eastman said.

But Scott J. Hamilton, executive director of the Cimarron Alliance Equality Center, said a backlash is worth it. "It will go away eventually," he said. "I'm frankly not worried about equality coming through the courts....If we relied on popular opinion in Oklahoma to grant marriage equality it probably wouldn't happen for generations."

Hamilton, Wolfson and other gay rights activists see the proper case less as Roe v Wade and more as Loving v Virginia, the 1967 U.S. Supreme Court ruling that struck down laws against interracial marriage. At the time, interracial marriage was less accepted in polls than gay marriage is now. But opponents saw that the marriages didn't actually harm them and "life went on," Hamilton said.

What about Indiana? Indiana marriage equality proponents are following the "take it slow" approach. The fight in the General Assembly this year is not to repeal the existing statutory prohibition against same sex marriage, but rather to stop or slow down efforts by opponents of same-sex marriage to write the prohibition into our Indiana Constitution.

And there are no law suits pending in Indiana. After the failure of an effort in the Indiana Court of Appeals in 2005 (Ruth Morrison, et al v. Doris Ann Sadler, et al) challenging our statutory same-sex marriage prohibition on Indiana constitutional grounds, the Indiana ACLU did not appeal the case to the Supreme Court and it has not brought an equivalent challenge since that time.

My question to Jane Henegar, Executive Director of the Indiana ACLU, last week: "Of course I'm asking now with the benefit of seeing what is happening in Utah and Oklahoma... My question, for use in the ILB, is whether the ACLU may be bringing such a suit in Indiana?" Ms. Henegar's answer:

Marcia, the ALCU has been a leader in defending the rights of the LGBT community since the 1930s. Here in Indiana, we are now focused on defeating HJR-3, which would amend discrimination into our state’s constitution.

Posted by Marcia Oddi on January 21, 2014 08:06 AM
Posted to Indiana Law