The House passed HJR 6 which constitutionally mandates discriminatory treatment for gays with respect to not only marriage but also legal statuses for unmarried people that are “substantially similar” to that of marriage.
Here is the roll call. This was a bipartisan effort. Notably, House Minority Leader Pat Bauer voted for the measure.
Update: I’ll just go ahead and add a few thoughts I’ve posted in various discussions I’ve had since this vote was taken. None of it is new, I don’t think. I’ve expressed them in these parts before. But, they bear repeating.
I’m a little struck by how much my own feelings on this issue have progressed. Until about ’92, I guess I was pretty flat out anti-gay. Then, I was indifferent. Then, I figured civil unions but not marriage. Now, all of those positions seem benighted to me. I think sexual orientation (straight or gay) is just how you’re born. It’s who you are. And, now I have close friends who I know to be gay. (Had some of ’em before, just didn’t know their orientation). It strikes me as fundamentally unfair to deny them the basic right of organizing their family in the same way I get to do.
In addition, I don’t get why “traditional marriage” needs to be “defended” from this or how this serves a defensive purpose. It’s not as if I’m any less married if the gay couple down the street get to commit to each other. We’re not going to run out of marriage. I don’t see how allowing gay marriage picks my pocket or breaks my leg (to paraphrase Jefferson). And, it’s not about one’s belief that marriage equality is “wrong.” It prohibits those who think it is right from enjoying the legal benefits of marriage. It further prohibits future General Assemblies from deciding that gay Hoosiers ought to have access to such legal benefits. These prohibitions can’t be chalked up to a simple difference of opinion in an “agree to disagree” fashion. It’s not as if we’re attempting to prohibit mandatory gay marriage.
I don’t necessarily find your last paragraph’s questions to be all that illuminating. But for what it’s worth, the gay couple down the street committing to each other does not require a government sanction at all. No law forbids commitment.
But when their commitment is deemed a “marriage,” it does pick your pocket and mine. There are tax benefits. There are social security survivor benefits. There are unlimited marital exemptions from estate and inheritance taxes. Etc., etc., etc. for 1000+ iterations as I recall the argument.
I’m aware that those observations are, for those whose reactions strike me as visceral, two-edged swords – i.e., it could be called unfair to deprive same-sex couples of those benefits. But I went through law school a bit ahead of you, and we still talked about things like the state’s interest in “marriage” (which then was univocal). Procreation was central, as I recall. Now that’s controversial (in the sense that it’s mocked). But I’ve never been convinced that there’s a very important state interest in encouraging same-sex pairs to commit. I can only name some smallish interests.
Bottom line for me as my thinking evolves – and this probably will come as no greater surprise to you than your story comes to me – is that I’d tend to the view that the state should get out of incentivizing marriage entirely if its only interest is “Awwww! Isn’t it sweet when people who love each other make a commitment!”
I say that not as a bomb-thrower, but as one who recognizes that if the state has lost it’s way on marriage, and recognizes only trifling interests therein, it makes more sense to equally deny benefits to anyone as to equally grant them to everyone.
Tipsy, those are great points. I certainly think this part gives a bunch to think about:
However, right after writing that, I realize that if gay couples want to have kids, adoption is going to be likely.
As someone who would rather a married gay couple raise a child instead of that child being aborted, I think I like the idea of the adoption “market” having more demand. Perhaps if a young woman knows there are many stable couples that would be ready to adopt, she would be less likely to abort.
I don’t think I have any real problems with getting the state out of the marriage business. As a practical matter, I don’t see that happening any time soon. I suppose my main issue is that I don’t see the need for treating gay couples differently from straight couples. The procreation explanation has never seemed too convincing to me because: a) seems like we have plenty of people; but more importantly b) the law has never seemed too interested in looking into whether particular heterosexual couples have even a remote chance of procreating.
OK, why don’t we just drop the word marriage. That’s what seems to threaten many of those against “gay marriage”. As a gay man who was in an 18 year relationship with my first partner (who died in 2002, otherwise we’d still be together), I’m more concerned about equal rights for ALL Hoosiers. I have paid taxes just as long as my straight friends of the same age. When someone in a “straight marriage” dies, the spouse doesn’t have to worry about the in-laws coming in and taking half of everything the couple worked for and forcing the other to sell the house in order to live. In addition there are the tax breaks and other benefits o being in a straight marriage (such as the ones Tipsy mentioned in an earlier comment).
I don’t even ask for a civil union. I just hope to see equal RIGHTS for gay couples before I pass on.
And as a side note, my two sons, from the ages of 8 and 5, grew up with a straight mom and her husband, and a gay dad (a teacher) and his partner (a pharmacist). Both sons turned out to be professional and responsible happy men with wives and children.
As an elementary public school teacher I saw many children from “straight marriages” who were neglected and unhappy. Fortunately there are more straight couples who produce happy well-adjusted children, including my own dear parents who raised three straight sons and one gay one in a small town in northern Indiana.
And gay couples can raise children just as well. During my 34 years of teaching in Indiana, one of my best students, both academically and socially, was raised by two lesbians.
It boggles my mind that in 2011, with economy, health-care, education, and infrastructure issues, our State government is spending time on discriminating against a group of its fellow Hoosiers.
In 2004, Speaker Bosma described this amendment as the most important issue facing Indiana.
Tonight I sit here stunned. I knew this vote would go this direction— but to see former Speaker Bauer vote in favor. It really make me want to rip that rug off his head to show his hypocrisy.
I’m angry tonight, because not only is my profession under daily and life-threatening attack (education), but my friends, neighbors and loved ones are as well. Families will continue to suffer and be discriminated against.
Tipsy – I agree — let the state get out of marriage altogether. Let every couple have to split their inheritance… all married couples can buy their protection from lawyers for thousands of dollars.. only to have the documents challenged by the in-laws.. they can beg to see their dying loved one in the hospital. THere’s a lot to be said, but tonight, I’ll just trudge exhaustedly to bed.. to try to make sense of my life again..
You know, we should at least be thankful that they stopped the GayRoller 2000 from running us over:
http://theoatmeal.com/comics/literally
Please, read the comic before blasting me. :)
Doug, I believe that the organized bar in this state needs to be made much more sensitized to the many thorny legal questions this amendment would raise. Even calling the measure the “Marriage Discrimination Amendment”, as many opponents do, tends to emphasize just one aspect of the issue at the expense of the likely unintended consequences. It might be more aptly called the “Amendment Banning Everything”.
I use the term “unintended consequences” somewhat tongue in cheek, realizing that when the advocates of the amendment materially changed it from a prior version, they knew exactly what they were doing. Previously they (including Senator Hershman in his recorded testimony) said that our lawmakers could (and should) still pass even full civil unions. Now that is gone from the new version. And nobody in the media EVEN ASKS why the stealthful change.
Doug: I agree with many of your sentiments that this is bad policy. However, your claim of discrimination is one I have trouble with.
This bill doesn’t discriminate against gay people, it is uniform in the fact that it doesn’t allow straight or gay people to marry people of the same sex. Granted, a high percentage of the people that wish to marry someone of the same sex are gay, but I don’t believe that is the proper test to determine if a law is discriminatory.
paul c: read the bill. ” Provides that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” not only does it ban gay marriage, but it also outlaws civil unions and straight “common-law marriage” as well.
stAllio: Perhaps my point was unclear. The law does not ban “gay marriage”; it bans all marriage that is not between one man and one woman. In other words, the amendment defines marriage to be between one man and one woman.
To be outright discriminatory (rather than discriminatory in effect), a law has to prohibit a certain population from doing something, while allowing others to do it. Jim Crow laws were an example of this. People of color were simply not (legally) able to do something that whites were allowed to do.
A more acceptable discrimination is child voting. Only allowing people that are 18 or older to vote is outright discriminatory against those that have not reached the age of 18. That discrimination may be acceptable, but it is discrimination nonetheless.
By statute, common law marriages have not been recognized for many years, but older ones were exempted. Some of those folks may still be around, and maybe more important, there are chains of real estate title and related probate issues that rest on that “legal status” for “unmarried individuals”. What would be the impact on HJR-6 on them? “Is anybody there…..does anybody care”?
Paul, your statement about discrimination reminds me of the Anatole France quote that “the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
Thanks for the quote. I liked it, and may use it in the future.
In fact, I think France’s quote makes my point for me. Most laws are discriminatory in effect against some segment of the population. Pandering laws discriminate against the poor. Insider trading laws discriminate against the rich. That’s just the way laws work. While I feel the need to repeat (not sure why I feel the need) that I am not a fan of this Amendment, I don’t think the Amendment is any more discriminatory than many other laws.
There is quite a bit of analysis in Equal Protection jurisprudence having to do with de jure versus de facto discrimination. I don’t know all the ins and outs, but the former is a law that is discriminatory on its face and the latter is a law that is discriminatory in effect.
There are levels of permissible discrimination based on the category of people discriminated against. If it’s a “suspect class” – e.g. race, then the analysis of whether it’s permissible looks at whether the state has a compelling interest and whether the discriminatory act is the least intrusive means of advancing that interest. On the other end of the spectrum, the state just has to have a rational basis for the legislation.
I don’t believe that homosexuality has been regarded as a suspect class (though, I would suggest that there is a good argument for them being so regarded). I would also argue that there is not a rational basis for this sort of amendment – but that has typically been a very low bar for any government to clear.
Doug: I believe that at least California, and maybe some other states have treated sexual orientation as a “sspect class” and therefore required a “strict scrutiny” equal protection analysis, putting the burden on the state to show a compelling reason for treating gays and lesbians differently from heterosexual folks.
My understanding is that no SCOTUS jurisprudence has explicitly stated that “non-heterosexuals” (for lack of a better catch-all) are a suspect class. However, certain Court opinions have made it sound as if the SCOTUS is not adverse to doing so. My guess is that this issue will at least receive the “intermediate scrutiny” similar to gender sometime in the not-so-far future.
If we’d rather play with semantics than face “the most important issue facing Indiana” head on, then there’s this: the amendment does not bar “same sex marriage regardless of sexual orientation”; it rather codifies a 19th century view of gender already recognized as outmoded by the mid-20th. Fully 1% of the population is hermaphroditic; a smaller percentage exhibits some other “anomaly”, either genetic or physiological, either by birth or by chemical inducement. It’s a measure of the extent to which gender is a cultural construct that such people typically have been assigned an official gender at birth, often based on the preponderance of “physical evidence”, and frequently undergo surgery at an early age, without regard for their own desires, to neaten up the package, as it were. Such people would either be permitted to marry according to some capricious filing of paperwork, or, viewed in the light of modern scientific understanding, denied the right to marry at all, and almost entirely due to an accident of birth. Who knows how many marriages currently recognized in Indiana involve “one man and one woman” according to convention, or adoption, and not fact? And you think the TSA is too intrusive?
(Which, by the way, is one reason I consider the whole nature vs. nurture debate to be particularly unfortunate when applied to questions of homosexuality and public policy, as though “homosexuals can’t help it” is a more enlightened view than “the deity of 5000-year-dead Semites isn’t gonna like it”. Homosexuality exists, and it doesn’t need to be “accounted for”. If it’s wholly volitional it differs not one iota from the way heterosexuals choose their mates.)
To throw an even further complexity into this – How does this affect the transsexual/transgender crowd? At what point is one a man/woman? I have one acquaintance who is halfway there, but has not completed his surgery yet – so is he a man or a woman? Could she get married under this proposed amendment even though her birth certificate lists her as male?
A VERY interesting question, Ted. Recently, as a gay partnered man engaged in the fight against the so-called “Marriage Protection Amendment” (which my colleague Chris Douglas has ingenously termed the “Amendment Banning Everything”) I’ve had my eyes opened to the concerns the transgender community has over the impact of this measure. In this particular case, a couple married in another state many years ago, one was male, the other female, something that any other state would still recognize without question. Even Indiana. But since then (and after having three children now adults) one of them is in the process of a change, and although still “pre-operative”, is afraid this will invalidate the marriage. Small though the percentage might be, these are REAL Indiana citizens with REAL life problems. Yet our General Assembly follows the politically expedient and continues to marginalize them.
This also discriminates against polygamists.
Good point Black Bart. If I had to call this amendment “prima facie discriminatory” that definition would apply most to polygamists.
I wonder if the legislature is going to figure out their error and next redefine the Indiana Constitution to include the definitions of “man” and “woman”.
It’s also probably prima facie discriminatory” against cows, tiger lillies, and various geological formations denied the benefits of the equal protection clause. We can go “slipperly slope” and purportedly “logical extension” to virtually every argument known to man (and undoubtedly also cows, tiger lillies, various geological formations and I think there’s a clamoring supernova out there somehwere beyond the Final Frontier). But let’s get real here. We’re talking about two human beings. And yes, maybe “man” and “woman” does need some defining somewhere, given the increasing scientific knowledge about the fluidity of gender boundaries. And an explanation of what’s considered “substantially similar” and what isn’t might not be a bad idea. Even the suppporters of this amendment are all over the map on this one.
Surprised that “natural born” didn’t make out into the text…they must not have thought of out outside of the presidential birth certificate context. I am ashamed and disgusted by our state and the people who voted these turkeys into office…is anyone… ANYONE? going to be able to say there quality of life is improved if this legislation is enacted?
Ah cell phone autocorrect how I hate you… Two “it” instances and a “their”