The Indiana Law Blog has some links to a couple of stories having to do with how the Indiana Chamber of Commerce is reacting to HJR 6 which would amend the Indiana Constitution to prohibit gay marriage, civil unions, and “a legal status identical or substantially similar to that of marriage for unmarried individuals” whatever that means. The Indiana Chamber is ducking the issue. It seems reasonably clear that there is no business upside to the amendment. To the extent a lack of gay marriage is somehow beneficial to the business community, Indiana law already prohibits it. However, the amendment at least creates uncertainty when it comes to a business decision that extends benefits to same sex partners of its employees. Let’s say you have in your employment contract some sort of benefit that you offer to married couples and same sex couples alike. Now, let’s say a court is asked to interpret that contract. One of the parties asks for that provision to be nullified, citing to the court the brand new piece of the Indiana Constitution that says to the court:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
“Your honor, this purported contractual benefit creates for unmarried individuals a legal status substantially similar to that of marriage. It’s fine if the business wants to put that in its contract, but this contractual provision is unenforceable and void as against public policy. The Indiana Constitution forbids you from recognizing that provision.” Dubious, but not wanting to be an “activist judge” the judge goes along with it; regarding his power to enforce the contract as being Constitutionally limited. Now, Indiana businesses are at a disadvantage when seeking to attract talented employees who are gay and have partners for whom they would like benefits through their jobs.
Calvin Coolidge famously said that “The business of the American is business.” Not so for the Indiana Chamber, it seems — at least not exclusively. They have to give due regard for the personal, social beliefs of their members. Enough of them are against marriage equality for non-economic reasons that the Chamber is unable to take a stand on the issue.
Meanwhile, Brian Howey reports that the state GOP is feeling the heat on the marriage equality amendment. It all probably seemed so easy a number of years ago when the effort to pass this amendment got started. Hell, the Democratic House leader even voted for it. Ought to be a no-brainer for conservative lawmakers, right? But the landscape is rapidly changing under the feet of state Republicans. They are caught between conservative pressure groups like Eric Miller and “Advance America” on the one hand. (Miller, incidentally, is now in the news for pressuring lawmakers against making our state’s day cares safer.) And, on the other hand, there seems to be a growing sense, particularly among younger conservatives, that whether an individual is gay or straight should be a matter of indifference for government policy. Some Indiana Republicans have flat out said they are not going to vote for HJR-6; much to the consternation of those social conservative lobbying groups. You get the sense that a lot of other Indiana Republicans aren’t quite ready to go that far; but really do wish the issue would go away so they could focus on tax and economic policy issues about which they feel more strongly. The legislative leaders are trying to decide on, tactically, how to handle HJR 6 in the upcoming session. Do they maybe handle it quickly; right at the beginning of the session, like ripping off a bandage? Or maybe they should let it sit until after the deadline for primary challengers to file for the upcoming election? They could also potentially clean up that problematic second sentence in the amendment with the “substantially similar” language. But that would start the clock over on the Constitutional amendment process; and by the time they got that language through two General Assemblies and on to the ballot, opposition to gay marriage might well have waned to levels such that even the Indiana law currently prohibiting same sex marriage in the state might face the prospect of repeal. Social conservatives who feel strongly about this issue must feel like they are working against a ticking clock and will likely react harshly if the amendment is delayed.
There doesn’t seem to be much of a question that “shall not be valid or recognized” applies to state/governmental entities like IU, Purdue, etc. with respect to domestic partnership benefit plans. Even a cursory reading of their eligibility criteria shows them to be at least “substantially similar” to marriage….and so if HJR-6 were to become law, kiss them goodby.
Applicability to private employers/contracts (non-state-entities) is arguably different, but (1) the second sentence of HJR-6 is passive….it doesn’t limit WHO “shall not recognize” to state actors (as do some amendments in other states). (2) If the proponents of HJR-6 would have meant to exclude private entities, they could have used more exact language such as that in Virginia’s amendment…they knew about it but chose not to.