HJR 6 – Gay Marriage

The House Judiciary Committee passed HJR 6 on a party line vote. This bill provides:

Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.

The question is who is going to be the lucky man and who is going to be the lucky woman. Maybe they’ll have a lottery or something. And wouldn’t it suck if they were already married to someone else?

The proposed amendment to the Indiana Constitution also provides:

A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

So, if you’re just shacking up together and want to provide for the orderly transition of property and care of the children and whatnot, maybe Indiana is not the state for you.

I’ve said it before. I’ve come to believe this kind of legislation is on the wrong side of history, is actively bad, and will come to be regarded as an anachronism. And, this is probably why there is a desperate push to enshrine it into the Constitution. Because, sooner or later, the people of Indiana will probably want to treat gays like ordinary people and this proposed amendment to the Constitution is designed to make that harder. After all, we already have a law that does this, and the Indiana Court of Appeals has upheld it (h/t Advance Indiana). I doubt the law will last forever, but when the law is ready to go, I don’t think we’ll do ourselves any favors by having this language in our state Constitution.


  1. DMC says

    Thanks, Doug…

    I’ve not had occasion to comment before, but I sent similar thoughts to both of my legislators (Noe and Delph, deaf ears) earlier this evening.

    Keep up the great work…


  2. DMC says

    Also, could you as a lawyer comment on the Full Faith and Credit clause of the Constitution? It’s been many years for me, but aren’t states to give credence to the laws of other states? Can Indiana nullify another state’s recognition of a marriage (notwithstanding the composition of the Supreme Court)?

    What am I missing?

  3. says

    Maybe we’ll decide some day that same sex couples really do advance the state interests that warrant state involvement in marriage now. Or maybe we’ll decide that the state’s interest in marriage has become so attenuated that the state should get out of the marriage business entirely. Or maybe we’ll decide that the state’s interest in people pairing off is entirely unrelated to whether they’re sexually attracted to each other, and we’ll abandon the name “marriage” for the state’s version of pairing off, calling it domestic partnership or something without sexual connotation, leaving “marriage” with only a religious meaning.
    For now, though, nobody’s talking much about the state interest in marriage; they’re just deciding pro or con based on pretty facile and superficial arguments – on both sides, in many instances.
    I really don’t know – and neither do you, what will happen when (and if) a more principled debate takes place. The sexual revolution is barely 45 years old, and no-fault divorce is younger than that. The pendulum may swing back as we define deviancy back up and resolve to strengthen the social and legal sanctions for the many ways in which people can disrespect marriage.
    Meantime, “this kind of legislation is on the wrong side of history” amounts, it seems to me, to little more than “I’m right. You’re wrong. Shut up.” I’ve probably used it myself, but that makes it no less tiresome.

    • day2knight says

      There really isn’t much to debate on this subject. Those who are opposed to same sex marriage are as on the wrong side as those who opposed biracial marriage and opposed abolition of slavery. The state has no compelling interest in following a strictly religious definition of the word marriage and efforts by the state to impede same-sex marriages on religious grounds run afoul of the establishment clause. And, really, there’s no other reason than religious that states would want to codify marriage explicitly as one man and one woman.

  4. says

    I almost added some stuff beyond what I wrote but decided it would take too long to articulate it well. Now I see that Advance Indiana, to which you like, reflected my thoughts pretty well on the second clause.

  5. Don Sherfick says

    What continues to fascinate me is that I keep replaying a video of Senator Hirshman’s adamant assurance in 2007 that the prior version would still allow the legislature to pass even full civil unions. At yesterday’s hearing proponents again wouldn’t go anywhere near talking about why the big change that now prohibits legislative action on that front. And now there’s an indication in an exchange between attorney Jim Bopp and Representative Ed Delaney that even private contracts that cross the line into “substantially similar to marriage” territory will be thrown out. The irony here is that opponents dimiss then need for legal protections for same-sex couples by saying all they need to do is have a lawyer draw up lots of papers. (That was never true but is a bigger discussion.) Now it seems that those documents considerable cost married couples don’t have to incur, may be worthless.

  6. Don Sherfick says

    DMC: The Full Faith and Credit Clause of the U.S. Constitution requires that each state must recognize the “public acts, records, and judicial proceedings” of another state. Although there appears to remain some uncertainty, the prevailing view seems to be that marriage fits none of these categories (interestingly enough a divocre decree would seem to). There’s also a “public policy” exception recognized. If something violates a state’s “stron public policy”, then it’s been ruled that no recognition is required.

    • Andrew says

      Interesting how you say “my morality,” not simply “morality.” Relativism at its fullest will nullify any attempt to explain morality in the first place. There can be no “my morality” only morality.

  7. Black Bart says

    What galls me is that Indiana Libertarians — who portend to be advocates of LESS government — are supporting the extension of marriage licensing.

    If persons wish to exchange vows (verbal contracts) in the presence of witnesses and consider themselves married; so be it. That agreement is sufficient without licensing.

    Rather than supporting the expansion of marriage licensing, Indiana Libertarians should be vocally endorsing and end to marriage licensing.

  8. says

    Bart- This Libertarian advocates getting government out of all marriage, and always has. Stood up to the plate during my 2006 candidacy for Secretary of State to denounce SJR-7 (at that time) and the involvement of government licensing, citing the racist history behind it.

    I’ll have to look into this.

  9. says

    Bart- Didn’t find anything on the LPIN’s website, but did find posts on the LPIN facebook page that did oppose government involvement in licensing any marriage, gay or straight. Can you cite what you saw? I would like to see it and give my input to the powers that be. Thanks!

  10. Larry M. Summers says

    Although I’m disappointed in the result, I would like to say I am proud of my representative (R-Ed Clere) for voting against this. He is someone I consider a friend, and he voted according to his conscience and not in a manner that fuels his bid for re-election.

  11. Lindsay says

    we have the right to marry who we love no matter their gender. it’s our life. you have no right to say how we live our lives we don’t tell anyone how to live theirs.

  12. MIke Brown says

    Marriage should be defined as one man and one women. Homosexual behavior is immorality at it’s peek. Just because some apocstasy is occuring in many of our churches today does not mean God changed his mind. Homosexual behavior is an abomination to God. Look up definition of abomination !

  13. Corrine says

    Yes, Robbi, but we know from Scripture that homosexuality is a sin. As Hoosiers, it is our choice. We don’t want gays here, so we will make laws to deter them. This is the way the Founding Fathers wanted America, citizens making their state the way they want. Let Indiana be straight, and let California continue to be a failure and a burden to the Union.

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