Among the many good arguments for not putting Indiana through an expensive and embarrassing battle over same-sex marriage, one gets little attention: amending the Constitution to prohibit it won’t matter in the long run.
Advocates of the marriage amendment say it’s necessary to prevent “activist judges” from overturning Indiana’s statute that limits marriage to one man and one woman. Their argument ignores a few key points. First, our state law already withstood a legal test. More importantly, our amended Constitution wouldn’t be immune to court challenges.
Residents of Oklahoma and Utah voted in 2004 to add to their constitutions language prohibiting same-sex marriage. A federal judge struck down Oklahoma’s amendment Jan. 14 after a decade-long challenge. The same thing happened in Utah Dec. 20. These disputes and others point to the U.S. Supreme Court ultimately settling this huge cultural rift. The high court already let stand a federal judge’s decision striking down California’s voter-supported amendment banning same-sex marriage.
Meanwhile, back in Indiana, the marriage law on the books survived a court challenge in 2005. The state court of appeals ruled that the statute doesn’t violate Indiana’s Constitution, which gives the Legislature broad authority to make such decisions.
Perhaps those who want our Constitution to spell out Indiana’s narrow definition of marriage should be happy with the status quo. If the Legislature decides that the amendment process should proceed, we’ll first be treated to an emotionally charged, family-dividing campaign leading up to a referendum this November. Then, if the ballot initiative somehow succeeds, legal challenges to the amendment will certainly follow.
That would put state government in the unenviable position of grasping for a successful defense of its flawed amendment.
As The New York Times has noted, Utah has shifted its argument three times in an attempt to find a defense of its ban that will stick. The state’s first argument was that “the traditional definition of marriage reinforces responsible procreation.” The federal judge who ruled Utah’s amendment unconstitutional didn’t buy that argument, or a second one: that the ban would make it more likely that children be raised by opposite-sex couples. Utah’s latest argument, that the ban promotes gender diversity in marriages, draws from Supreme Court decisions endorsing the value of diversity in public university admission policies.
Should Indiana really be involved in such hollow arguments? A state that prizes limited government shouldn’t tie itself in legal knots trying to defend an amendment that limits freedom, makes it difficult for businesses to recruit top talent and has little chance of being upheld in the long run.
The vast majority of Hoosiers, regardless of their personal beliefs about marriage, surely have enough common sense to realize the futility of this fight. They should ask their representatives in the Legislature who are pushing HJR-3 what they realistically hope to achieve by putting us through this.•
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