News From Terre Haute, Indiana


March 18, 2014

EDITORIAL: Legal questions, legal answers

On same-sex marriage bans, courts will ultimately decide

TERRE HAUTE — When the Republican-dominated Indiana General Assembly earlier this year passed a bill trying to amend the state constitution to ban same-sex marriage, many saw it as a small-minded, homophobic, even hateful attack on gay couples and a deprivation of civil rights under the constitution.

And it was.

But now, in the afterglow of the (thankfully) just-ended 2014 version of the Legislature, that action looks more much like a positive step, because of what it forestalled.

It’s positive, not because it discriminates against same-sex couples — which it does, and we surely don’t favor that — but because the matter of defending gay marriage bans is increasingly becoming moot, so fast are moving the currents of public opinion and judicial action against those bans.

Here’s why it’s becoming moot: Before the constitutional amendment issue can move to a public referendum in the future, a bill must pass during another two-year session of the Legislature. The current two-year session is 2013-14, so the next such session is 2015-16. If the exact same language that passed this year were again to pass in 2016, a referendum on the amendment could then go on the fall 2016 ballot. That is a gubernatorial and presidential election year.

But do the Republicans, who presumably will be trying to re-elect a sitting Republican governor and to elect a Republican presidential nominee to reclaim the White House, want a same-sex marriage amendment referendum on that ballot? Probably not.

It’s not just that. From 2013 to 2014, the level of support among Indiana Republicans for the marriage amendment waned significantly. The matter still easily passed both houses of the Legislature, but by changing a sentence of the bill from what had passed in 2011, perhaps Republican opponents also were invisibly scuttling movement toward a constitutional amendment.

One hopes that was more than political gamesmanship, that in fact some legislators had rethought the measure and found it to be based on discrimination and intolerance.

We also take seriously that some of the leading Republican thinkers — such as Sen. Luke Kenley — really were concerned that the ban not become part of the constitution, that having a state law banning same-sex marriage should suffice for those who oppose such marriages.

But whether the matter is a law or part of the constitution is a distinction without much difference — because either or both would likely soon be ruled unconstitutional by a state or federal court, perhaps even by the U.S. Supreme Court.

In Virginia, for instance, a lawsuit is challenging that state’s constitutional amendment, approved by voters in 2006. That state’s attorney general, a Democrat, has refused to defend the commonwealth in that case and has stated his support for same-sex marriage. So making the matter a constitutional amendment does not protect it from being ruled unconstitutional. Arguments in that case are tentatively scheduled for May.

Virginia’s is far from the only suit. Federal judges in Utah and Oklahoma — hardly hotbeds of liberalism — have struck down gay marriage bans. And about 12 states are seeing federal lawsuits against such bans, according to USA Today, while 17 states and the District of Columbia allow gay marriage.

Indiana is now home to at least five such federal lawsuits, all filed in the last two weeks. One came from the Indiana Civil Liberties Union, and another from a national pro-gay advocacy group, Lambda Law — sponsored on its website by such mainstream companies as Microsoft, Toyota, American Airlines and Mercedes-Benz. An earlier federal suit, filed March 7 in downstate Indiana, represents four same-sex couples. In each case, complainants seek to force the state to legalize same-sex marriages and recognize same-sex marriages from other states, where such marriages were legal when they were performed.

Filing lawsuits, of course, does not throw out old laws. A court must be convinced, and the inevitable appeals must be defended and won.

But, even as many still oppose gay marriage on religious grounds, it is increasingly obvious that, on legal grounds, such prohibitions are wrong and violate our fellow citizens’ civil rights to full family lives.


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