Per WCSI out of Columbus and to nobody’s surprise, the Indiana General Assembly will move forward with a Constitutional Amendment that, along with gay marriage, bars future legislators from adopting laws giving unmarried individuals rights substantially similar to those enjoyed by a married man and woman.
The shorthand for this Amendment is going to be “gay marriage,” but the second sentence of the amendment looks like a potentially huge wild card that goes beyond whether or not gay people can get married:
A legal status substantially similar to that of marriage for unmarried individuals shall not be valid.
What does that mean? You tell me. I don’t know.
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No lawyer in Indiana knows– nor does any judge. Could be the nicknamed “the lawyer’s full-employment” amendment. And those progressives wishing the US Supreme Court will take this up, may just get their wish and rue the day.
A “common sense” reading would be to deny the courts or future legislatures of Indiana the ability to create civil unions. But put this in the hands of some of the last in class trial court judges (and appellate court judges) in Indiana, and this proposed amendment could be used to negate agreements between Gay and LGBT committed couples that contractually create rights that mimic the marriage form contract. Rights of inheritance, joint tenancy rights, rights of subsituted descision making, rights to direct the rearing of children. Just about everything that create the base unit of the family, breeders or not.
But hey, such provisions will make Indiana look less attractive to high wage, high education level employers. Elections have consequences.
In testimony before the Indiana Senate (I was there and also testified), I seem to recall James Bopp, one of the leading proponents of the Amendment, acknowledging that one of the goals of the Amendment was to prevent future General Assemblies from enacting a civil union bill. I believe that there was also discussion of preventing local governments from offering domestic partner be edits. http://blog.wallack.us/2010/01/my-testimony-in-opposition-to-senate.html
Beginning to think the solution is to strip married men and women of their rights. Get government out of the sanctioning marriage business.
How would recognizing LGBT marriage strip married men and women of their rights?
Getting government out of the marriage business is impossible. Marriage is foundational legal arrangement that grants numerous rights, duties and benefits upon married couples of any sexual preference.
And from the state’s perspective, the only only thing relative to marriage that the state extends to religions is the ability to solemmize ceremonial marriage.
One solution for those who do not agree with the idea of same sex marriage is to amend the Constitution.
The other is to allow any two people to form a contract with each other to grant the same “foundational” rights. Call it whatever you want, get the government out of your church, and allow your church to practice your idea of marriage as they so choose.
Government and religion are not peanut butter and chocolate, better together; they are better the further apart they are from each other. But because we have allowed government and religion to get wrapped up, it’s a problem.
I do think that by the time I am old, all these provisions will be regarded with the same derision as those that forbid marriage by mixed-race couples years ago.
Joe, That is a way to achieve what you seek. But divorce would have to stay in place to unwind the foundational contract.
I taught a constitution course at a community college a couple times. Today’s college age students are generally supportive of same sex marriage. So it will get here. States with constitutional amendments will be seen derisively or with anger.
Wouldn’t this also get rid of common law marriages as well?
No, many states, Indiana no longer recognizes common-law marriage, unless you were legally in a common law marriage as of the date of the statute. Of the top of my head, Indiana stopped reconizing common law marriages that were entered into since about 1956.
Ohio had some problems with their “second sentence” several years back. This article talks about it in relation to the (at the time ) proposed North Carolina amendment, which also had the second sentence:
http://www.newsobserver.com/2012/03/04/1902872/marriage-amendment-debate-focuses.html
Matt: The North Carolina amendment has yet a third sentence saying it shouldn’t be interpreted to deny courts the ability to enforce private contracts. Although proponents of the Indiana amendment at least formerly claimed HJR-6, without such a provision, wouldn’t apply to private contracts, its unclear why they didn’t borrow the North Carolina language. In response to a question by Representative Ed Delaney in committee hearing last year, attorney Jim Bopp pretty much acknowledged that private wills, etc. that looked too much like marriage arrangements would fall by the wayside. Scary stuff indeed.
This is unconscionable. Not that Bopp is a legal genuis or anything more than a showboating idealogue, but to consider the fact that the Indiana Supreme People’s Assembly would be advised of this risk and still promote such language.
Carlito: I’m not at all convinced that the democratically elected representatives of Indiana’s people are fully aware of what is happening here. As was the case in North Carolina, proponents focused only on the first sentence (marriage definitiion) and totally downplayed the rest. So both lawmakers and the public generally hears little but that “unelected activist judges” are the on evil addressed. Totally aside from debating the substantive cultural issues, both the legal and judicial community ought to be looking at broader issues: We’re talking about a section of the Indiana Constitution entitled “Bill of Rights”. Ought not those who espouse that be able to explain in detail how it is to be interpreted? What the terms “substantially similar” and “legal status” mean. It’s a complete (and ironic) cop-out to simply say “that’s for the judges to decide”. Unfortunately unless it fits within a 30 second sound bit, the media tends to yawn at any attempt to have a serious dialogue concerning something this important.
Don,
I would like to think that the legislature would consider the second sentence. I would hope that they would reject the entire amendment, but they will likely will pass the amendment.
You obviously have followed this issue. If I understand the process, the amendment must be passed by two straight sessions. Or is is two years in a row?
I am not sure the Indiana appellate courts would disturb contractual and estate planning agreements based upon the second sentence, but I am one of those that thought the Supreme Court would recognize that parochial school vouchers are supporting religous institutions. Hope springs eternal.
Carlito: It has to be passed in the same form in what the Indiana Constitution terms “two consequtively elected” sessions with an election intervening. It passed in 2011, we had an election earlier this month, and so passage again will send it to statewide public referendum, most likely in November 2014. I understand your point about the voucher cases; I just don’t see how a court can enforce a contract or will that has terms creating legal relationships that are “substantially similar” to the legal status of marriage can interpret and enforce without “recognizing” such a status..
“What does that mean? ”
It means we have a lot more bigots than not.
I am embarrassed to live here.
Abdul reports that the amendment is dead. It will be interesting to watch the first 30 days of the session.
How is the amendment “dead?” The session doesn’t get going until January.
I’m wondering the same thing too, Paul. I’ve scanned Abduhl’s site but not finding anything that doesn’t require subscription.
It would be a good confidence building measure to hold off on the amendment this session and soft peddle the divisive social issues.
They are probably better equipped to shoot themselves in the foot on divisive social issues than they would be at handling important issues facing Indiana. Maybe the sooner they get rid of their supermajority by over-reaching, the better.
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