Wednesday, December 12, 2012

Put the Marriage Amendment on Hold

Posted by on Wed, Dec 12, 2012 at 4:00 AM

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The U.S. Supreme Court Friday may have given Indiana Republicans an early Christmas present when it decided to hear the constitutionality of California's Prop 8, which would ban same-sex marriage in the Golden State.

Prop 8, as it is known, was a ballot initiative that made same-sex marriage illegal in California, however the measure was put on hold when the federal courts ruled the measure served "no purpose and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."

Under the "marriage amendment" that lawmakers could vote on this upcoming session, "Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."

The legal question surrounding Prop 8 is whether it violates the Equal Protection clause of the Constitution. According to the 9th Circuit Court of Appeals, "Proposition 8 did nothing more than lessen the status and dignity of gays and lesbians, and classify their relationships and families as inferior to those of opposite-sex couples." The court found that "the people of California, by using their initiative power to target a minority group and withdraw the right to marry they once possessed under the California State Constitution, violated the federal Constitution."

Another thing to think about is that California's Prop 8 was a lot less complicated than Indiana's proposed amendment. California's amendment said," Only marriage between a man and a woman is valid or recognized in California." Indiana's gets a lot more complicated because of the second part of the amendment as noted above, which talks about a legal status identical or substantially similar to that of marriage. No one has been able to tell me exactly what that means or what the consequences of that language would be. Potentially that could be the political equivalent of tap dancing in a legal minefield.

By agreeing to hear the case, Indiana lawmakers who have not been crazy about the whole same-sex marriage issue can make the argument that until the U.S. Supreme Court decides what's going to happen it would probably be prudent to put the whole matter on hold until next year. For a measure to get on the ballot to change the Indiana Constitution, it must be passed by two consecutive sessions of the General Assembly, so it could still come up in 2014.

If Indiana lawmakers are smart, they will kick this can down the road and wait to see what happens. Going forward now that the U.S. Supreme Court has agreed to hear the case would be the equivalent of flying blind and nothing good can come of that.

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