GOP advances same-sex marriage ban

Jenni White, left, and Casey O’Leary are scheduled to marry one another next month. Same-sex marriage is already illegal in Indiana, but an amendment to the state constitution would mean there’s little hope that could change. Photo by Mark Lee

When Casey O'Leary and Jenni White first met each other

during a production of The Vagina Monologues at the Unitarian Universalist Church of Indianapolis, they never would

have guessed that they would be married at the same church two years later.

At least White, 35, would have never guessed it.

"When the show was over I asked her out and she had no idea

why I still wanted to hang out after we were done with the show," O'Leary, 36,

told NUVO. "Then she sort of figured it out. And we've been together ever


The two women plan to be married next month in Indianapolis,

but they aren't naive about Indiana's laws regarding gay marriage. The

Unitarian Universalist Church of Indianapolis where they are members recognizes

marriages of all couples – both straight and gay.

"We were both aware that the marriage wouldn't be considered

legal at this point, but we're hopeful and always have been hopeful that

Indiana would follow the lead of other states that have made it legal," O'Leary


So while they will be technically married in the church,

they will not be able to enjoy the myriad legal benefits conferred upon

straight married couples. In Indiana, they aren't even eligible for the

benefits available to gay couples in civil unions, as is the case in some other


"I understand that for a lot of people it's a moral issue

for religious reasons," O'Leary said. "They believe that being homosexual is

immoral. But I'm expected to pay taxes and I'm expected to be a good citizen."

The chances of meaningful reform toward Indiana marriage

equality are looking dim, if not downright unrealistic. Equality suffered a

major blow last week when the Indiana House of Representatives took the first

step towards making its same-sex marriage laws some of the harshest in the


By an overwhelming 70-26 vote, the Indiana House passed

House Joint Resolution 6, which, if instituted, would not only ban gay marriage

in the Indiana constitution, but also anything "substantially similar" to

marriage — including civil unions. Currently, 30 other states have

constitutional gay marriage bans, and 20 are about as strict as the legislation

proposed in Indiana.

Suddenly, despite years of unsuccessful attempts to get a

same-sex marriage ban in the Indiana Constitution, the ban looks like it might

have a chance in a Republican-led Statehouse.

To O'Leary and White, it just feels like more discrimination

on top of what they already feel.

"Having been a good citizen of this state, and then to be

told that somehow I'm less worthy of a marriage license, is just infuriating,"

O'Leary said. "It makes no sense."

Cold feet

Constitutional changes – like last November's amendment

cementing state property tax caps – are not easy to make, and the

resolution has a long road ahead.

The successful House vote sends HJR 6 to the Senate for a

vote. If it passes, the ban must pass both chambers a second time under a

separately elected legislature – at minimum, two years from now. A public

referendum on Election Day would enshrine it in the Constitution.

But last week's vote in the House was a noticeable change

from years past when the resolution perennially died in the Democrat-controlled

House. The last time a constitutional ban on same-sex marriage passed the House

was in 2005. It has passed four times in the Senate since then.

While it doesn't seem like O'Leary and White will have a

problem with cold feet, the same can't be said for many House Democrats with

regard to the marriage ban. Eleven of them broke ranks to support the

legislation. One Republican voted against it.

Perhaps the most surprising vote came from Minority Leader,

Rep. B. Patrick Bauer (D-South Bend). As the former Speaker, he was

instrumental in blocking such legislation in past sessions.

"We're very

disappointed in Representative Bauer," said Rick Sutton, President of Indiana

Equality Action, a gay and gender rights advocacy coalition."His vote was a complete surprise.

We're shocked, disappointed, we're disgusted."

Bauer's motives are unclear. Numerous requests for comment

from NUVO were not returned by Bauer or the resolution's coauthor, Rep. Dave

Cheatham (D-North Vernon), also a Democrat.

Some inside the Statehouse note that, with little to lose in

the minority, House Democrats are more concerned with protecting their right

flank in view of November's huge electoral losses.

In some cases, at least, socially-conservative Democrats may

have felt freer to support a measure the 60-member Republican majority would

have passed anyway.

"From the first day I announced my candidacy for state

representative in 1998, I was clear about the values I held on 'social'

issues," wrote Rep. Peggy Welch (D-Bloomington), in a prepared letter she

shared with NUVO, noting that she had voted for the resolution once before, in

2005. "I have attempted to be transparent."

Whatever the reason, advocates and gay couples worry that

with Republicans running the show and Democrats unwilling to mount a serious

public opposition, there's little standing in the way of the bill's passing on

this first run through the Statehouse.

"It's a difficult climate to stand up for the right thing,"

Sutton said. "We're told that (Bauer) wants to allow this to go to the voters.

But last time I checked we elected representatives to make decisions."

Straight and narrow

With so many major issues occupying the Statehouse, like the

economy and education reform, it's a curious time for the legislature to spend

its energy passing a same-sex marriage amendment – especially considering

same-sex marriage is already illegal in Indiana.

But while Indiana code states that "only a female may marry

a male," and "only a male may marry a female," supporters of the resolution

want to make sure the law can't be overturned in the courts someday, as it has

been in other states.

"We are ensuring that our current law, which the vast

majority of Hoosiers support, is not overturned by an activist judge," said the

resolution's author, Rep. Eric Turner (R-Marion) in a statement after the bill


Indiana University law professor Deborah Widiss said that

was poor justification because the court has already upheld the law.

"The Indiana

courts have looked at the Indiana constitution and said Indiana's marriage law

is perfectly constitutional under the Indiana Constitution," Widiss said.

"There's no reason to think that analysis would change in the future."

But some supporters, like Curt Smith, president of the

Indiana Family Institute, a socially-conservative Christian group associated

with Dr. James Dobson's Focus on the Family, argue that the broader intent is to

reinforce the existing institution of marriage. Like the ban's detractors, he

pointed to the fact that same-sex marriages are already illegal; the bill,

hence, would not technically create any new discrimination, he said.

"It's good public policy to take that jurisdiction out of

the courts and allow the people to speak and define such an important and

seminal relationship," Smith said."At a time when divorce rates are high and a number of couples are

choosing not to marry, it is a good public policy step for states to affirm

their primacy in family law."

Law of unintended consequence

While a constitutional ban would keep gays from enjoying

some of the rights reserved for straight people, it could also result in broad,

negative consequences lawmakers might not have intended, Widiss said.

Especially problematic is a clause in HJR 6 that says legal

status identical to or substantially similar to that of marriage will not be

valid or recognized for unmarried couples of any gender.

"Because that language is so broad, and because it would be

in the constitution, it would impact how all those other laws are analyzed,"

Widiss said. "That's why things like the domestic violence laws or domestic

partner benefits are impacted by constitutional amendments like this one."

Widiss pointed to Ohio – which has gay marriage laws

similar to the ones proposed in HJR 6 – where two judges ruled that the

state's domestic violence laws did not apply to unmarried straight couples,

because of the constitutional language in the gay marriage ban.

"Ultimately, the Ohio Supreme Court disagreed and said the

domestic violence law still could be enforced," Widiss said. "But who knows how

many people in the interim weren't able to get protective orders. They have

suffered considerably under that interpretation. And here we don't know how the

Indiana courts would resolve a question like that."

State Rep. Scott Pelath (D-Michigan City) supports the

language in the state code that bans gay marriage, but he, too, thought a

constitutional ban was excessive.

"I believe a constitutional amendment on the same topic is

redundant and unnecessarily divisive," especially the section that prevents

civil unions, he said in a statement. "If enacted, this language will put a lot

of lawyers to work."

Going nowhere

With little chance of getting their marriage recognized by

the state, it would be understandable if O'Leary, an Indiana resident for 12

years, and White, a lifelong resident, moved to a state where gay marriage is permitted

– or at least civil unions.

But that has never been an option for the couple, O'Leary

said. Neither feels she should have to move. They both have children from

previous heterosexual marriages and their roots are in Indiana.

"Both of our ex-husbands live locally and work locally,"

O'Leary said. "We would never think of trying to separate our children from

their fathers. ... We want to live here and we want to make our lives here."

O'Leary, who was 32 when she came out, was married to a man

and had children before realizing she was gay.

"I had thought I was straight my entire life," she said. "I

married a man, was very happily married, and then fell in love with a woman and

it just turned my whole life upside-down.

"It hasn't been easy, but meeting (Jenni) has been the best

part of the entire journey."

Having only been out in the open about her homosexuality for

about four years, O'Leary said feeling the discrimination personally – by

way of a same-sex marriage ban, for example – was something new.

"This is the first time I've ever really understood what it

feels like to be told that someone else has decided that what I want to do is

not acceptable," she said.

But while it's frustrating for O'Leary to think about living

in a state where, as she said, "discrimination could be written into the

constitution," she and White don't have much time to be too worried about what

could happen three years from now.

They have a wedding to get ready for.

"We're sort of a modern family, but we're a good family,"

O'Leary said. "It's just sad to think that so many legislators could just so

easily make a decision that affects us so deeply."


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