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February 10, 2014

Legal landscape rapidly changing on gay marriage bans

Challenge to Indiana amendment likely would come if it passes Statehouse

INDIANAPOLIS — Supporters of the marriage amendment say it’s needed to protect Indiana’s current ban on same-sex unions from being overturned by “activist” judges.

But as debate moves forward in the Statehouse, the issue appears more and more likely to end up in the courts.

“I’ve been teaching constitutional law for 30 years, and never in my experience have I seen a situation shift so rapidly,” said Indiana University law professor Daniel Conkle. “The legal opinions involving state laws and amendments are shifting as almost rapidly as public opinion on same-sex marriage is. As a result, we have a remarkable rapidly shifting legal landscape.”

Should the state Senate pass House Joint Resolution 3 with language restored to ban both gay marriage and civil unions, the proposed amendment to the state Constitution may head to voters as soon as November. If it passes the public vote, Conkle predicts a quick court challenge.

“It’s inevitable,” Conkle said. “Shortly after the election, you’d see a lawsuit.”

States’ attempts to define marriage to exclude same-sex couples are fast facing legal challenges triggered by last summer’s U.S. Supreme Court decision striking down a key part of the federal Defense of Marriage Act. The ruling was cited by federal judges overturning bans in Utah and Oklahoma. Those decisions are now on appeal.

Challenges are pending on bans in Michigan, Virginia and Florida, where advocates argue that laws prohibiting gay marriage violate the U.S. Constitution’s guarantee of due process and equal protection under the law.

And in early February, the American Civil Liberties Union sued to challenge a constitutional amendment approved by Wisconsin voters in 2006, which is similar to the original version of Indiana’s measure. Both ban gay marriage and civil unions.

“I think the issue is headed back to the U.S. Supreme Court,” said Conkle, adding that the nation’s high court could take up challenges to state bans by early next year, depending upon how fast federal appeals courts move.

In 2011, the General Assembly took the first step toward putting the amendment question to voters when it approved a joint resolution banning same-sex marriage and civil unions. Late last month, the House voted for the resolution again but stripped out the civil union language, leaving the ban on gay marriage only. Proponents of HJR-3 are fighting to return the language in the Senate’s version, arguing that a more comprehensive ban would stand up better in court.

Jane Henegar, president of the Indiana chapter of the ACLU, said her organization is focused on defeating the amendment in the Legislature and would deal with potential legal challenges later. The ACLU has partnered with Freedom Indiana to kill the measure at the Statehouse.

“We’re consumed with preventing discrimination from being enshrined in the constitution of Indiana,” Henegar said.

During a Senate committee hearing Monday, Jim Bopp, a Terre Haute attorney and amendment supporter, argued that a measure that includes language banning same-sex marriage and civil unions would hold up better in court.

“You have to defend marriage against any copycat versions of marriage — in other words, civil unions,” Bopp said.

There are lawyers on the other side who disagree.

Indiana University constitutional law professor Dawn Johnsen said even though the U.S. Supreme Court stopped short of overturning state bans on gay marriage, she’s convinced it signaled its intent.  

“To be sure, the court did not resolve the constitutionality of HJR-3,” Johnsen said last month. “But the court’s reasoning suggests that in a future case it would hold unconstitutional state laws that discriminate on the basis of sexual orientation with regard to who may marry.”

Top legal officers in states with same-sex marriage bans haven’t reached consensus.

Late last month, Indiana Attorney General Greg Zoeller joined 10 state attorneys general in a filing in a federal appeals case involving bans on same-sex marriage in Utah and Nevada. They argued that no fundamental right to same-sex marriage exists, and that allowing such unions will lead to “any group of adults” seeking that status and the “tragic deconstruction” of marriage.

Yet Nevada’s own attorney general also publicly questioned the fate of her state’s ban, saying the U.S. Supreme Court ruling put up a higher obstacle to laws that discriminate on the basis of sexual orientation.

And in late January, the Virginia attorney general refused to defend his state’s same-sex marriage ban against a federal court challenge. Instead, he asked on the court to invalidate the amendment, calling it unconstitutional and oppressive.

Seventeen states and the District of Columbia have laws that allow same-sex marriages. Several were triggered by court rulings.

The first states that allowed same-sex marriage did so as a result of a court decision: Massachusetts in 2004, Connecticut in 2008 and Iowa in 2009.  

In New Mexico, the state Supreme Court ruled in December that same-sex couples in the state are allowed to marry. In October, the state Supreme Court in New Jersey refused to delay a state court decision requiring the state to recognize same-sex marriages.

— Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com. Follow her on Twitter @MaureenHayden.

 

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