Kokomo Tribune; Kokomo, Indiana

June 27, 2013

Question remains: Will Indiana's same-sex ban stand?

It's unclear how court decision will impact the state law.

By Scott Smith Kokomo Tribune
Kokomo Tribune

---- — Eric Turner doesn’t like the term “same-sex marriage ban,” insisting that he’s more interested in creating a working definition of marriage as part of Indiana’s constitution.

But the Cicero Republican state representative, the author of a proposed amendment to define marriage as “one man, one woman” in Indiana’s state constitution, had little to say Wednesday on the U.S. Supreme Court’s decision to strike down the federal version of his amendment, the Defense of Marriage Act.

“I haven’t read the opinion yet, but certainly it doesn’t affect the 36 states where either laws or constitutional amendments are in place,” Turner said. “I am encouraged that states can still make their own decisions on the definition of marriage.”

While some legal scholars feel Wednesday’s Supreme Court decision sets a precedent for challenging state same-sex marriage bans, Deborah Widiss, an associate professor of law at Indiana University’s Maurer School of Law, said the impact of Wednesday’s decision “is just not clear yet.”

“It’s impossible to know for sure what might happen in future cases,” Widiss said. “It might [erode state laws] but it’s not clear yet how all the different pieces would shake out.”

Widiss said the decision leaves in place Indiana’s current law, which doesn’t recognize same-sex couples as having the same rights as opposite-sex married couples.

If a same-sex couple, who were married in a state which recognized same-sex marriages, moved to Indiana, that marriage wouldn’t be recognized under Indiana law, she said.

After Wednesday’s decision, “What’s not clear is whether they’d be married for the purposes of federal law. But they’re definitely not married for the purposes of Indiana law,” Widiss said.

While Turner said he anticipated the state constitutional amendment, known as House Joint Resolution 6, passing the Indiana General Assembly next year and then passing a referendum vote, he declined to speculate on the margin of the referendum vote.

Asked if he thinks the vote would pass 10 years from now, Turner said, “I don’t know.”

Even before Wednesday’s ruling, Indiana Attorney General Greg Zoeller expressed concerns that throwing out the DOMA law would have an “eroding” effect on state marriage bans. That concern, along with the sharp swing in public opinion on the issue, now become certain to factor into the political debate facing Indiana.

“I think it’s inevitable that we’ll see more lower federal court rulings chipping away at state laws, like the one in Indiana,” said Steve Sanders, associate professor of law at the Indiana University Maurer School of Law.

“And probably more importantly for the declining number of people pushing this [same-sex marriage ban] issue is the sea change in public opinion,” Sanders said. “There is no more secular opposition to same-sex marriage. It’s all religiously based.”

More important than the words of Justice Anthony Kennedy’s majority opinion, Sanders said, is “the music behind it.”

The ruling, he said, sent a message to lower federal courts that the rights of same-sex couples are to be considered “seriously and respectfully.”

“Every day, for the opponents, I think it becomes a little more uphill,” he said.

Scott Smith writes for the CNHI newspapers in Indiana. He can be reached at scott.smith@kokomotribune.com.