On Monday evening, the Indiana Republican-controlled House amended the language to House Joint Resolution 3 with a 52–43 vote, which will likely preven the state from sending a constitutional ban on same-sex marriage to the ballot in 2014. The change struck the second sentence of the amendment, which would have banned recognition of any legal status for same-sex couples that is “identical or substantially similar” to marriage. Many felt this intruded too much on benefits for same-sex couples, which are vital to ensuring businesses and universities in the state can competitively hire.
If HJR 3 passes the legislature its new form, it cannot be sent to voters this year. Amendments to the Indiana State Constitution must pass in the same exact form in two consecutive legislative sessions before being sent to the ballot. HJR 3 was first passed in 2011, but it now becomes a new amendment, which — presuming the new form passes the House and then the Senate — must itself be approved in a second legislative session, meaning the earliest voters would see it on the ballot is probably 2016. By then, the U.S. Supreme Court may well have ruled on one of the other state cases, such as those that have already advanced in Nevada, Utah, and Oklahoma, and the amendment could be moot.
There is one way that the amendment could still advance in its original form this year. If the House passes the new version of the amendment, the Senate could then restore the second sentence and pass it that way. The different versions of HJR 3 would then have to be resolved in conference between the two chambers. Any change to the final conference version from what passed in 2011 would prevent the bill from advancing to voters this year.
A poll by the Indianapolis Star in advance of the vote found that the chamber was fairly split, with more than a third of the lawmakers who voted for the amendment’s first passage in 2011 now indicating opposition. Their concern about the impact of that second sentence culminated in the amendment to the amendment that ultimately passed on the floor.
The second sentence had become such an issue of contention that a separate bill was introduced expressing the “legislative intent” of HJR 3. According to HB 1153, the amendment would not have prevented private companies from offering benefits to same-sex couples. The introduction of this separate bill, however, only strengthened the case that the amendment’s language was unclear.
Both state and federal conservative groups have been championing HJR 3, but this development means there’s nothing for them to champion in Indiana this year. A rally was scheduled for Tuesday featuring the National Organization for Marriage’s Brian Brown and homophobic activist Robert Oscar Lopez, but it’s unclear if that rally will proceed as planned. The Family Research Council’s Peter Sprigg, who believes homosexuality should be criminalized and that gay people should be deported, was also in Indiana Monday to support the amendment. In a post on FRC Action’s Cloakroom blog, Sprigg explains why he believes the amendment is important:
Society needs children; children need a mother and a father. Those are the only reasons why marriage is a public, not purely private, institution. And the only type of relationship which can naturally fulfill those important public purposes is the union of a woman and a man. It is irrational to treat any other structural type of relationship as a marriage.
It is equally irrational to grant any other type of relationship the legal and financial benefits which are granted to marriages. Society gives benefits to marriage because marriage gives benefits to society. The burden of proof must therefore rest upon those who would change the definition of marriage, or expand the allocation of its benefits, to show that such a redefinition or expansion would benefit society — not just the individuals involved — in the same way and to the same extent that the union of a man and a woman does. This is a burden of proof they cannot meet.
The benefits same-sex couples could access with marriage, including both state and federal legal protections, cannot so easily be discounted. Still, the burden of proof that Sprigg demands is easily met: in the state of Indiana alone, there are over 2,000 same-sex couples raising children. Allowing those children’s parents to marry protects them as well.
Unfortunately, allowing same-sex couples to marry isn’t on the table in The Hoosier State. Still, this small change has spared the gay community and their families a year of psychologically damaging campaigns for an amendment that wouldn’t even change the status quo.