Supporters of a constitutional amendment banning gay marriage say such a move would strengthen state law, while an expert on the Indiana Constitution believes it is unnecessary because current law already prohibits it, and has been tested in the courts.
Legislation to amend the Indiana Constitution passed a huge hurdle Tuesday with approval by both legislative houses, but the measure must be passed by a subsequent Legislature, then approved by a vote of the people before it would take effect.
House Joint Resolution 6 reads “… only marriage between one man and one woman shall be valid or recognized as a marriage in Indiana.”
It also reads “… that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
The resolution would prohibit gay marriage and civil unions, and could affect the ability of employers to offer domestic partner benefits, said Deborah Widiss, associate professor of law at Indiana University Maurer School of Law.
HJR 6 passed the Senate by a 40-10 vote Tuesday after passing 70-26 in the House on Feb. 15.
State Sen. Greg Walker, R-Columbus, and State Rep. Milo Smith, R-Columbus, voted for HJR 6.
Before it can become part of the state constitution, it must pass a separately elected General Assembly, either in 2013 or 2014, and be approved by a statewide, public referendum.
Current law upheld
Smith told attendees of the March 21 Third House session that he supports the legislation because he believes marriage should be defined as between one man and one woman, and should be protected from legal challenges.
“If there is some litigation some judge could say, ‘Well it’s not in the constitution so it’s something else,’ so we’re just wanting to make for certain we’re protecting the existing law. The only way I believe you can do that is to put it in the constitution so that all judges have to interpret the constitution,” Smith said.
Walker told the Third House crowd that marriage is a societal institution he wants to protect.
He said he has told opponents of HJR 6 that he’s not trying to intrude on their personal privacy “because marriage is an institution of society; it’s not an institution of being in relation to two consenting adults.”
Prof: law not needed
Widiss said adding language to the state constitution to ban gay marriage is unnecessary, because state law already prohibits gay marriage and does not recognize same-sex marriages performed in other states. Also, legal challenges to Indiana’s statute have been unsuccessful.
Courts in other states apply constitutional provisions that require heightened scrutiny of legislation that disadvantages minorities, said Widiss, who testified before the Indiana Senate Judiciary Committee on March 16.
Those courts say there must be a compelling reason for the law, she explained. That’s why laws in some states have been struck down.
Indiana, though, does not have a constitutional provision requiring heightened scrutiny of legislation. Instead, substantial deference is given to legislation.
That means statutes are upheld if any rational basis exists for the legislation, and the burden is on the challenging party to discredit every basis for the legislation, Widiss said.
“In Indiana, as long as there is a reasonable, rational basis for a law, it will be upheld under the Constitution’s privileges and immunities clause,” she explained.
The Indiana Supreme Court explained that reasoning in Collins vs. Day, when determining whether legislative enactments violate the constitution’s privileges or immunities clause, Widiss said.
She also noted that a lawsuit that challenged the state statute prohibiting gay marriage, Morrison vs. Sadler, was unsuccessful.
In that case, couples that had civil unions performed in Vermont wanted them recognized in Indiana.
The presiding court ruled against the plaintiffs because it said the reasons for the statute limiting marriage to a man and woman satisfied the standard for rational basis, Widiss said.
“The way I read Indiana cases, (the law) seems extremely unlikely to be overturned,” Widiss said.
Adding the legislation to the state constitution would prevent civil unions and could affect employers’ ability to offer domestic partner benefits.
Widiss said HJR 6 has vague language in reference to civil unions, and if the intent is to prohibit them, the language needs to be clearer for voters if the issue reached a referendum.
Indiana does not have a law that prohibits civil unions, but efforts to make them legal would be unconstitutional, if HJR 6 became part of the Constitution, Widiss said.
The consequence of that might well be employers having to discontinue providing domestic partner benefits, or broadening the qualifications to avoid violating the state constitution, she said.
Michigan enacted a constitutional amendment that included language prohibiting anything similar to a marriage between unmarried couples.
Many of Michigan’s state universities had offered domestic partner benefits to same-sex couples. To receive them, they had to prove to the university that the relationships were like marriages. On that basis, Michigan’s courts said the domestic partner benefits were unconstitutional, Wisdiss said.
As a result, many of the universities broadened the standards for employees to receive domestic partner benefits. Two adults living together now qualify. The broadened standards have come at an increased expense to the universities, Widiss said.
In Bartholomew County, Cummins Inc. and Columbus Regional Hospital offer domestic partner benefits.
Cummins began offering them in 2000, while CRH started those benefits in 2005.
Cummins offers benefits to unmarried same-sex and opposite-sex couples.
Couples have to sign an affidavit stating that they live together, are not married to other people and are responsible for the household’s finances, said Mark Land, executive director of corporate communications.
However, the company does not require they show documentation for proof.
A Cummins representative testified before the Senate Judiciary Committee on March 16 that HJR 6 would harm the company’s business and make the company more reluctant to create jobs in Indiana.
“This resolution sends a powerful message that Indiana is not a place that welcomes people of all backgrounds, and it jeopardizes our ability to be competitive in global markets,” said Jill Cook, vice president of human resources.
“Cummins believes that inequality based on marital status sends a message of intolerance that has no place in a state that professes to treat all citizens with dignity,” she said.
Cummins does not know the impact such an amendment would have on its domestic partner benefits.
“There’s still some uncertainty around it, that’s what concerns us. The amendment, in our opinion, is worded vaguely,” Land said.
CRH expanded its eligibility for benefits to include qualified partners: unmarried couples of the opposite or same sex.
To verify qualified partner status, certain documentation is required:
A completed and signed Spouse/Qualified Partner Eligibility Verification form.
Proof of a joint bank account.
Proof of a joint rental agreement or mortgage.
Utility bills in both partners’ names.
Driver’s licenses or other government-issued identification showing that both partners reside at the same address.
Paige Harden, CRH public relations and marketing specialist, said, “As a ‘Best Place to Work’, it is important that we offer a strong benefit package to our employees. It is too early to speculate on the impact of the legislation.”
Concerns about the impact of the legislation could prompt the Inclusive Community Coalition in Columbus to hold dialogue sessions on the issue, said Julia Stumpff, a member of its steering committee.
“Certainly we would talk about the legislation’s impact on straight and gay folks,” she said.
Stumpff said she has not heard if this General Assembly’s passage of HJR 6 has prompted any organizations to prepare for a possible legal challenge.
Because HJR 6 still must pass another separately elected General Assembly and a public referendum, ICC likely would use the time to try to educate people about the legislation’s effects, Stumpff said.
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