Gay Marriage and Legislature and State Government and Legislation and Government & Economic Development and Government

Republicans introduce bill to 'clarify' marriage amendment

January 9, 2014

Indiana House Republicans introduced a constitutional amendment to ban same-sex marriage Thursday, along with a supplementary bill meant to address concerns that have led some lawmakers to reassess their votes for the proposal.

Speaker Brian Bosma, R-Indianapolis, said the bill addresses questions that “people are validly raising, in most cases” by clarifying that the constitutional amendment would not prevent universities and private businesses from providing domestic partner benefits, wouldn’t impact the state’s domestic violence laws and would not usurp local human rights ordinances.

“Benefits are very clearly not invalidated through the amendment,” Bosma said.

Indiana University, for example, would continue to be able to offer domestic partner benefits that it’s leaders had worried the amendment could quash, he said.

Still, the new Republican proposal left some observers – and maybe even some lawmakers – confused about whether the amendment would still ban civil unions – which are legally like marriage.

Bosma said the amendment would prohibit civil unions, while allowing couples to retain benefits through domestic partnerships.

“Civil unions are essentially marriage by another name,” he said. “Domestic partnerships are something different, and it depends on what the nuances are on what a statute would say in that regard or somebody’s benefits would say in that regard.”

But Senate President ProTem David Long, R-Fort Wayne, said he wasn’t sure over the exact definitions of the two terms.

“I can’t define a civil union for you,” he said. “I am not sure I can find anybody that can effectively define a civil union for you. Domestic partnerships are more definitive. There are more of them out there.”

And Joel Schumm, clinical professor of law at IUPUI, said he believes the addition of a 70-line statute makes the legislation confusing. He said the bill only reflects the intent of the current session.

“The biggest problems are that the statute seems contradictory of the language in the constitutional amendment, and what the statute says may not be what voters want or even know about,” Schumm said. “This makes things more confusing and creates uncertainty, which can lead to litigation.”

But Bosma said, “I believe that the language gives future legislators and generations, and perhaps the current one, the ability to provide for unmarried couples regardless of their orientation. I think that it is a smart addition to make that clear.”

House Joint Resolution 3, passed two years ago as HJR 6, defines marriage as the union of one man and woman and is designed to protect an existing state law with the same language. The amendment also says that a “legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

House Bill 1153 says that the second part of the amendment “prohibits the state from circumventing” the marriage definition. But it lists a variety of benefits and opportunities that cannot be restricted or infringed upon by the constitutional amendment.

Bosma said the goal is not to take something away from someone that is receiving it today, and that HB 1153 simply clarifies the legislation for educational institutions, schools and counties. He also said powers of attorney, wills and other documents would remain valid.

He said private businesses, organizations or businesses can set their own rules. “It is a decision by them, if they extend those benefits, and their benefit or insurance provider agrees to it, then those are not invalidated,” he said.

“The purpose of the amendment is solely, in my view, to protect the statute,” Bosma said.

Indiana is one of only four states to have a marriage-defining law not protected by a constitutional amendment. However, most were passed several years ago, when public opinion was more negative about same-sex marriage.

Now, public opinion polls show that even in Indiana – where the amendment was popular just a few yearsago – voters are split on the issue.

Freedom Indiana campaign chair Megan Robertson said the bill shows that the amendment was not written well the first time.

“It’s disappointing that they obviously feel there is a problem with the original language, enough that they have to have this extra bill to clarify what they originally meant,” she said. “Instead of going back and doing it right on something as important as an amendment to our constitution, they’re just going to push it through. It’s really disappointing.”

However, Bosma said it’s not unusual for a bill offering a legislative intent to accompany a measure, citing the Rockport coal-to-gas plant legislation as the most recent example. He said the supplementary bill cannot alter the clear language of the amendment but, “it establishes the intent of the legislature in adopting the amendment.” That could be useful in court.

Bosma said the marriage debate will continue regardless of whether the amendment passes and that eventually a lawsuit will be filed to try to overturn it, as has been done in 30 other states. So Bosma said he thought it was “quite appropriate” to give the courts, voters and legislators some clarity on precisely what the language does and does not do.

“To the extent that policy makers can, in an official capacity, answer those questions, I think that’s a positive for the process,” he said.

He went on to say that he was pleased by the General Assembly’s expression of intent.

But Robertson compared the addition of a secondary bill to doing one’s homework wrong the first time. Instead of redoing it and telling people what one really means, “just do it right the first time.”

She said it is not the legislature’s duty to define what the state constitution says.

“It’s a constitutional amendment, it’s approved by the voters and then it goes into the constitution and stands on its own,” Robertson said. “Unless the people – the voters – are going to approve the secondary bill as well, then it really doesn’t have much standing.”

There was also some controversy regarding the renaming of the proposed amendment. Robertson said in a statement that it was renumbered to confuse Hoosier voters.

“One thing I’ve heard is that they’ve renamed it because it has half the support it used to have, which I thought was interesting, and happens to probably be true,” she said. “I think it’s political gamesmanship that really doesn’t have any place in this process.”

Freedom Indiana has created a number of signs and advertising that refers to HJR 6.

Bosma said the numbering merely indicates the order in which the legislation was filed and that there probably won’t even be an HJR 6 this session.

Bosma also addressed concerns about how the amendment could affect business in Indiana. Officials at two of the state’s largest employers – Cummins Inc. and Eli Lilly and Co. – have said they are worried about how the amendment will affect who they can hire.

“If I thought it was disastrous for Indiana I wouldn’t be doing it,” Bosma said. “I certainly don’t think it is,” he said, noting that eight of the top 10 “fast-growth states” – including the entire Top 5 – have a similar amendment.

Still, pressure has been mounting on lawmakers about the marriage fight. Advance America – a conservative group – started television ads about the issue this week while Freedom Indiana delivered letters from 6,000 Hoosiers to lawmakers.

Bosma said he recognized that legislators could possibly face political fallout from their decision on the marriage issue. He said he tried to follow his father’s advice to “do what’s right and let the politics shake out for itself.”

“I’ve done nothing other than encourage people to vote their conscience and to do what they think is right on this issue,” he said.

He said it would be up to each member to make up his or her mind as to how to make their decision, but that, “I don’t believe most people here make their decisions based on threats, or promises, or concern for their political future.”

Bosma said he had received a pledge of unlimited campaign funding to make this issue go away. He refrained from naming the person because he or she might have violated state and federal law.

“I was shocked to receive it and brought it to that person’s attention what it sounded like,” he said.

Bosma said much of his support for the amendment – and the bill – stemmed from his desire to see the issue decided by the people of Indiana. He said he did not think it was appropriate for this issue to be decided by one judge with one plaintiff.

“My preference is that the decision in this regard, whatever it may be, is made by elected officials and ultimately the people, and not by an activist judge,” he said.

House Minority Leader Rep. Scott Pelath, D- Michigan City, echoed Bosma.

“They don’t want a single judge redefining marriage,” Pelath said. “They don’t want an activist judge making a decision”

Pelath said the marriage amendment may be the “issue of the session,” but he wants to focus on other things.

He said his chief concerns with HJR 3 were corporations providing benefits for employees, domestic violence laws, wills, living wills, visitation rights and local ordinances.

According to Pelath, the reasoning behind HB1153 was that the Republicans “felt guilty” about the questions raised by the amendment. But he said “it doesn’t actually do anything.”

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