February 8, 2013
By Jacob Combs
Big news out of Indiana yesterday, where legislative leaders of the Republican-heavy General Assembly announced they will not be voting this year on a proposed constitutional amendment to ban marriage equality. Speaking to the media, Senate President Pro Tempore David Long and House Speaker Brian Bosma said that the delay is designed, in part, to allow the legislature to wait until after the Supreme Court rules on the Windsor DOMA challenge and the Prop 8 case this spring. “Prudence dictates that we wait,” Bosma said at the event.
As we wrote earlier this week, Indiana law dictates that a constitutional amendment cannot be amended once it is placed on the ballot. Theoretically, that could have meant that if the Supreme Court ruled in the Prop 8 case that states may not prohibit same-sex couples from marrying, Indiana voters would still have been required to approve or reject the amendment in the 2014 election, even though it would automatically be unconstitutional if passed.
The Indiana General Assembly approved the proposed amendment in 2011 by large margins in both houses. In order to qualify for the 2014 ballot, it must be passed through the assembly again either this year or next year.
During the press conference, Speaker Bosma expressed confidence that the measure would be approved by the General Assembly and the Indiana electorate in 2014. However, although a recent poll conducted by Ball State University in November determined that there is a roughly 50-50 split amongst Hoosiers on the issue of marriage equality, the survey also found that a majority opposes putting a ban on equal marriage rights in the constitution by a 54-38 percent margin.
“We continue to believe the spirit of this amendment runs counter to our shared Hoosier values of kindness and equality,” Indiana Equality Action Executive Director Rick Sutton said in a statement. “We also believe that the breadth and vagueness of the second sentence of the proposed amendment creates a host of unintended legal issues. A delay is by no means a win, but we believe we are headed in a better direction, and Indiana is stronger when we all move forward together.”
The ‘second sentence’ referred to by Sutton reads, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” That language resembles wording in Amendment One, the 2012 marriage equality ban passed in North Carolina which mandated that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized” in the state. As in the North Carolina measure, the Indiana language could in effect prohibit lawmakers from implenting any civil union or domestic partnership protections in the future for either same-sex or opposite-sex couples.
That wording could be potent ammunition for LGBT advocates in a 2014 ballot campaign, who could highlight the law’s unintended consequences beyond marriage equality. Any attempt by lawmakers to modify the language would reset the clock on the amendment process, pushing back a potential popular vote by years. Asked if legislators might make such a change to the bill’s language, Bosma told reporters, “There may be some that want to do that.”
Nevertheless, yesterday’s announcement to postpone a General Assembly vote on Indiana’s marriage equality ban is a major development. With public opinion on equal marriage rights shifting fast, a 2014 vote on the measure could take place in a dramatically different legal landscape than a 2013 vote would have. The Supreme Court’s two gay rights decisions this term could lead to federal benefits for married same-sex couples, the restoration of marriage equality in California, the most populous state, or even a nationwide right to equal marriage. In addition, four more states–Rhode Island, Illinois, Delaware and Hawaii–could extend marriage rights legislatively to gay couples, bringing the potential number of marriage equality states to 13 (plus the District of Columbia).
For opponents of equal marriage rights, running out the clock may well be turning into a losing proposition.