Kokomo Tribune; Kokomo, Indiana

Local News

February 13, 2014

Legal landscape rapidly changing on gay marriage

Adding ban to constitution may not protect it from legal challenges.

(Continued)

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 HJR3 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 will deal with potential legal challenges later. The ACLU has partnered with Freedom Indiana to try to kill the measure at the Statehouse.

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

During a Senate committee hearing on 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.

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