HJR 3 debate over for now

INDIANAPOLIS — When this all started, the halls of the Statehouse were full of citizens shouting, singing and chanting, trying to make their voices heard. Thirty-five days later, some of the activists had stopped coming. There were fewer calls for “liberty for all Hoosiers” or to “let citizens vote.” The Senate vote passed with a smaller audience, a few dozen onlookers, compared to the more than 100 who had been there in the past.

That vote, a 32-17 affirmation of House Joint Resolution 3, ended the same-sex marriage debate in the Indiana General Assembly for this session, but there could be more to come. The version of the constitutional amendment passed by the Senate on Monday and the House of Representatives Jan. 28 must be passed by the legislature in 2015 or 2016 before Hoosier voters will see it on the ballot.

Supporters of HJR 3 have been motivated by court cases throughout the country that have overturned laws banning same-sex marriage. That’s why they want it in the constitution — it’ll be harder to overturn.

“It began when unelected judges started interpreting the people’s statutes and changing what they said,” Sen. Michael Young, R-Indianapolis, said before voting for HJR 3. “I’d rather have 6 million people decide this than one judge.”

Opponents have used economic arguments and emotional stories to drive their point home. But in their final pleas to vote no, Democrats argued the issue is about more than job benefits or a positive business environment.

“This is the United States of America,” Sen. Jim Arnold, D-LaPorte, said. “We open our arms to everybody, whether we agree with their opinions or not.”

Monday’s session brought out another unexpected no vote for HJR 3. Sen. Mike Delph, R-Carmel, one of the General Assembly’s staunchest opponents to same-sex marriage. Delph announced in a press conference that he would not support the watered-down language presented to the Senate.

The original version of HJR 3 included a second provision, which would have banned civil unions and any other legal status similar to marriage for those who are not married. The House of Representatives eliminated that sentence, which had caused controversy and was one of the chief arguments used by opponents, including IU and other major employers.

This change is why Hoosier voters won’t see the amendment on the ballot this November. The 2011 legislature had approved the old language, but this version is too
different.

“The can keeps getting kicked down the road while the culture changes and opponents grow,” Delph said. “The State of Indiana needs to bring this issue to closure once and for all.”

THE 10-YEAR BATTLE

This fight didn’t start this year, or even last session. It stretches back through 10 years of failed attempts, dozens of votes and hundreds of expert witnesses.

Before this fight began, marriage was something for one man and one woman, by definition of Indiana law. That law is still on the books today, Indiana Code 31-11-1: “Only a female may marry a male. Only a male may marry a female.”

But a court decision hundreds of miles away called everything into question. On Nov. 18, 2003, the Massachusetts Supreme Court struck down a state law defining marriage as between only one man and one woman.

Within three years, 23 states had passed constitutional amendments like the one the Indiana Senate approved Monday, for a total of 26 constitutional bans nationwide. Massachusetts was still the only state where gay and lesbian couples could legally marry.

Hoosier lawmakers argued that a constitutional amendment would help prevent judges from redefining marriage and keep the state in line with its history.

“This bill will allow Indiana to stay in line with other states that want to preserve traditional marriages,” Sen. Brandt Hershman, R-Wheatfield, said in 2005. “With malice toward no one, this bill would be in keeping with history.”

In the time since then, the tide of public opinion has started to turn. Today, 29 state constitutions still ban same-sex marriage, but 16 states and Washington, D.C., perform them.

Meanwhile, in Indiana, the General Assembly has played legislative pingpong, sending joint resolutions back and forth in what have proven to be futile efforts to amend the state constitution, which requires overcoming three steep barriers: passage by the legislature twice, with an election in between and support from a majority of voters.

“As far as how easy or difficult it is and how lengthy it is to amend the constitution, Indiana is on the far end,” said Steve Sanders, associate professor with the IU Maurer School of Law. “That’s a pretty rigorous set of hurdles to get over.”

They came close twice, in 2007 and this January. The first time, a resolution that had been passed by the 2005 General Assembly and the 2007 Senate stalled in a House committee. This year, a drastic language change on the House floor means this is the first consecutive legislature to approve the amendment.

“For a while, the people who were controlling the various branches of state government didn’t see it as a high priority,” Sanders said. “A year ago they didn’t even bring it up. Now this year they decided it’s important we do it.”

Yet Sanders said the urgency could be short-lived. He thinks the U.S. Supreme Court could have resolved the same-sex marriage debate nationwide by 2016, the next time the legislature will be in the this position again.

“I’d say it is highly likely this issue is going to return to the Supreme Court this year. When it gets to the Supreme Court, I think the court is going to strike these laws down. I think they’re going to say same-sex marriage is a constitutional right,” Sanders said. “If not this year, then certainly by the 2015-2016 Supreme Court term, the court’s going to have answered this question, and we’re going to have moved on to other things.”

PARTIAL VICTORIES

When the Senate convened after an hour and a half of delays caused by lengthy party caucus meetings, those present in the chamber stood up for a prayer and the Pledge of Allegiance. Out in the hallway, the few dozen activists who had gathered to watch the vote through windows said the Pledge quietly. As the familiar phrases drew to a close, their voices rose in unison.

“With liberty and justice for all,” they shouted, the sounds reverberating through the Statehouse.

Volunteers with Freedom Indiana, a group devoted to defeating HJR 3, had turned up at the Statehouse for every hearing and every vote. Sometimes, pro-HJR 3 activists affiliated with a variety of groups came, too, and little arguments cropped up in the crowded hallways around the windows to the House and Senate chambers, but not Monday.

Anti-HJR 3 activists cheered and yelled throughout the debate, but when Senate President Pro Tempore David Long, R-Fort Wayne, announced the final vote, no one spoke. The crowd dissipated, and the Senate moved on with its business.

Freedom Indiana didn’t accomplish its primary goal of defeating HJR 3, but the group’s leaders don’t view the session as a complete loss either, Megan Robertson, campaign manager, said.

“We’re excited the second sentence was taken out and we’re not going to referendum,” she said. “If you’d asked me a few months ago, I’d have said we’d have a referendum in 2014.”

While Freedom Indiana gathered on the top floor of the Statehouse to celebrate a partial victory, some legislators who support a marriage definition amendment were doing the same in the Senate.

Sen. Delph and the socially conservative organizations whose leaders joined him in the Monday press conference weren’t the only supporters of HJR 3 who expressed concerns about voting for language that didn’t include the second sentence.

Other Republicans, including Sen. Scott Schneider, R-Indianapolis, said they went back and forth about whether or not they could support a constitutional amendment that didn’t ban civil unions and couldn’t be on the ballot this November.

“I’m a big fan of one-man-one-woman marriage, and I’m a big fan of the language we voted on in 2011,” Schneider said before voting yes. “Sometimes you have to learn to take half a loaf instead of the whole loaf.”

Follow reporter Michael Auslen on Twitter @MichaelAuslen.