Of all the issues to be consi-dered by the General Assembly, none has generated more attention or controversy than House Joint Resolution 3 which, if passed then ratified by voters, would add this sentence to the state constitution: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana.”
But the bill also includes a second provision that has gone almost unnoticed — one that complicates an already difficult issue but, ironically, could provide at least a temporary compromise that makes sense in terms of policy and politics alike.
“No one knows [what the second sentence] means. It’s very ambiguous and poorly written,” Freedom Indiana spokeswoman Jennifer Wagner said of the provision stating that, if HJR-3 passes, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
The intent is open to interpretation, of course, but Wagner and Freedom Indiana, which has mobilized opposition to the bill among universities, mayors, corporations and others, say “no one has been able to clearly define what affects [it] would have on existing marriages, domestic partner benefits, human-rights ordinances, legal contracts and benefits for unmarried couples.”
Now, I have no doubt the overwhelming majority of HJR-3 opponents are motivated by their support of same-sex marriage — an issue that, as I have written before, pits my libertarian instincts against my understanding of Scripture. But even staunch gay-marriage opponents should be concerned the second clause unnecessarily injects language that is not only vague but overly broad. The state has a legitimate interest in defining marriage — whatever that definition is — but far less standing as to whether same-sex couples enter into contractual relationships or are covered by businesses’ benefits programs.
“Some people think we should amend out that second clause,” said state Senate President David Long, R-Fort Wayne, who called the issue “the toughest I’ve had to deal with in 17 years.” Although Long pledged recently on my “Fort Report” program the Legislature would not avoid a vote on HJR-3 this session, he added that “what the bill looks like is the issue. There are a lot of unknowns.”
If I read the political tea leaves properly, I suspect Republican leaders are seriously considering removing the problematic second clause. And because the amended version would not be identical to the bill that passed the House by a 70-26 vote and the Senate 40-11 two years ago, Wagner said, the amendment process would go back to square one, meaning the Legislature would have three years to pass the bill twice before sending it to voters for approval.
And if that sounds like a cynical legislative ploy to avoid a final vote on a difficult issue, think again. Removing the second clause would not only improve the bill but would provide time to consider the wisdom and necessity of prohibiting in the constitution a practice that is already illegal in Indiana but is apparently gaining acceptance rapidly.
“It’s a generational thing,” Long said, referring to acceptance of same-sex marriage among younger Hoosiers. “Opposition used to be 80 percent. Now it’s 55 percent, and things are changing rapidly.”
Those who say the state has no business regulating marriage are wrong. Indiana code also limits marriage to close relatives, prohibits bigamy and establishes an age of consent — all of which could be challenged should the redefinition door be opened for same-sex couples.
But Wagner had a point when she said the constitution should be amended sparingly, and only with broad support. If Long is right and public sentiment continues to evolve, a constitutional ban on same-sex marriage enacted now may be supported by only a minority of Hoosiers in four years — but difficult to repeal.
Activists on both sides of the debate are not looking for compromise. But, for now, the better part of valor may be for the Legislature to strategically retreat by removing the second clause, passing the first and waiting for the dust to settle. Time may provide the clarity this issue currently lacks, but desperately needs.
Kevin Leininger is a columnist for The News-Sentinel of Fort Wayne. Contact him at email@example.com.