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MASSON: Marriage amendment is short-sighted

December 1, 2012

MassonThomas Jefferson said, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

This is a libertarian sentiment. It is a small government sentiment. But, the sentiment is not shared by the General Assembly or our incoming governor. That this is so will be evident when the Legislature convenes and passes, for the second time, the proposed marriage inequality amendment to the Constitution.

Amendments to the Constitution require that two separately elected general assemblies pass a measure and that the proposal then be voted on by the public. In 2011, the General Assembly passed a proposed amendment stating, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

In other words, gays cannot marry. In fact, future legislatures would not be permitted to extend to gay couples rights “substantially similar” (whatever that means) to those enjoyed by married people.

The notion of limited government is popular, at least generically. Additionally, recent measures in Maryland, Maine, Minnesota and Washington demonstrate increasing acceptance of marriage equality nationally. And, why not? Same-sex marriages among our friends and neighbors neither pick our pockets nor break our bones.

Yet, our General Assembly will not hesitate to enshrine disparate treatment into our Constitution for future generations even as younger Americans become more accepting of those with differing sexual orientations.

Indiana already has a law, upheld by the state supreme court, restricting marriage to heterosexual couples. The proposed marriage inequality amendment does not, therefore, do anything for us presently. Rather, it is an effort to prevent future generations from making the decision for themselves.

While the measure is often billed as a hedge against the bogeyman of “activist judges,” in fact, it would instead tie the hands of duly elected representatives in the future. Absent a constitutional amendment of their own, future general assemblies would be unable to enact for same-sex couples recognition of some or all of the rights enjoyed by heterosexual couples.

I view a widespread change in attitude as likely. Certainly my own views have evolved.

When I was a younger man, I was convinced I disliked gays. Then I met a gay person. Still, I did not think the law needed to change. Then I found out one of my friends was gay. “Maybe,” I thought, “civil unions are the way to go; but not marriage.” Then I discovered I had several gay friends. “Maybe they should be able to get married,” I thought.

Progressively, with the ambient connection of social media and people increasingly open about their sexual orientation, I began to understand more viscerally that these are just people—people with hopes, dreams, strengths, weaknesses, hobbies, jobs and all the rest of it. The only difference is the gender of the person they love. There is no reason to treat their relationships differently.

I am confident we will one day come to view marriage discrimination in the same way we now view anti-miscegenation laws. To 19th century Hoosiers, those laws no doubt seemed necessary. To us, such laws and the people who passed them appear tragically racist and barbaric.

We should not continue the same mistake with marriage equality. Even if we are not willing to treat gay people equally today, we ought to allow future generations to decide for themselves whether they wish to do so tomorrow.•

• Masson is a Lafayette attorney, author of Masson’s Blog and former counsel for the Legislative Services Agency. Send comments on this column to ibjedit@ibj.com.

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