By Maureen Hayden and Scott Smith
CNHI News Service
INDIANAPOLIS — Supporters of same-sex marriage may be celebrating the U.S. Supreme Court’s rulings Wednesday as a victory for marriage equality, but key Republican leaders in the Indiana Statehouse see it much differently.
Instead of halting the proposed constitutional amendment banning same-sex marriage, top GOP legislative leaders say the court has cleared the way for the legislature to move forward on putting the state’s current law prohibiting same-sex marriage into the state constitution.
Indiana House Speaker Brian Bosma said he’s “confident” the state’s proposed marriage-ban constitutional amendment will be approved by the Indiana General Assembly next year and sent on to voters for their approval, despite potential legal challenges and independent polling that shows most Hoosiers no longer support it.
“I am certainly pleased the Supreme Court has confirmed each state’s right to address the legal issue of what constitutes one of the most important institutions in our society,” Bosma said in a statement released Wednesday, after the court’s rulings on two major marriage-equality cases.
Indiana Senate President David Long echoed Bosma, saying while the court struck down key provisions in the federal Defense of Marriage Act (DOMA) as unconstitutional, it left intact, with a second ruling on a California case, the right of states to determine how to define marriage.
Long said: “I fully anticipate that both the (Indiana) Senate and House will be voting on a marriage amendment next session.”
In a pair of 5-4 decisions, the nation’s high court struck down DOMA, which had denied federal benefits to gay couples married under state law. It let stand a district-court ruling that Proposition 8, a 2008 voter initiative that ended same-sex marriages in California, is unconstitutional.
While some legal scholars see the decisions as precedent for challenging state same-sex marriage bans, Deborah Widiss, an associate professor of law at Indiana University’s Maurer School of Law, said the impact “is just not clear yet.”
But the rulings do leave in place Indiana’s current law, which doesn’t recognize same-sex couples as having the same rights as opposite-sex married couples. And, in doing so, it fuels opponents of same-sex marriage in Indiana who want to put that law into the state constitution.
Long and Bosma angered some social conservative groups in February when they decided to delay a vote on the marriage-ban amendment, known as House Joint Resolution 6, or HJR6. Both Bosma and Long cited the pending cases in front of the U.S. Supreme Court as reasons for killing the resolution in the 2013 session, which ended in April.
Supporters of marriage equality were hoping that decision would remain permanent, but are now gearing up for the political fight to come.
“We continue to believe that HJR6 should be abandoned because it runs counter to our core Hoosier values and creates a host of unintended legal consequences,” said Chris Paulsen, head of the Indiana Equality Action.
While Republican Gov. Mike Pence, a social conservative, voiced his support for the marriage-ban amendment on Wednesday, some conservative Republicans in the GOP-controlled General Assembly voiced their doubts about it, citing both the rapidly evolving public opinion on same-sex marriage and the court’s rulings.
Sen. Luke Kenley, the powerful chairman of the Senate Appropriations Committee and a critic of the proposed marriage-ban amendment, said some of his GOP colleagues who supported the amendment in the past may now balk.
“I don’t know if it will pass or not,” said Kenley of HJR6. “It seems to me these (court) rulings put another barrier in front of passage.”
Republican Rep. Ed Clere of New Albany, chair of the House Public Health Committee, has opposed the marriage-ban amendment in the past and said he will again.
He called Wednesday’s court rulings a “major victory for both equal protection and states’ rights” but added: “Just because a state may have the right to do something, however, doesn’t mean it should. The marriage amendment is wrong for Indiana, and I will continue to oppose it.”
Independent polling shows waning support in Indiana for a same-sex marriage amendment. Last October, the Howey/DePauw Indiana Battleground Poll showed only 45 percent of Hoosier voters would support a constitutional ban on same-sex marriage. Among younger voters, the percentage was much less.
The 2012 Hoosier Survey by the Bowen Center for Public Affairs at Ball State University in December found that while Indiana residents are evenly split on the question of whether same-sex marriage should be legalized, 54 percent are against putting a ban on it into the state constitution.
“Opinion has turned as our Hoosier Survey illustrates in favor of same sex marriages,” said Joe Losco, chair of Ball State’s political science department. “Nevertheless, there is likely to be substantial political push back from conservative forces. Today’s decisions mean the political battle lines in the states are drawn, and the battles will commence.”
If HJR6 does come up for a vote next session as expected, it needs only a simple majority vote by both chambers of the Indiana General Assembly to clear the way for the marriage ban resolution to go on the November 2014 ballot, and the pressure from marriage-ban amendment supporters is likely to be intense.
The Indiana Family Institute issued a statement Wednesday saying the court’s rulings won’t end its fight to write Indiana’s current same-sex marriage ban into the state constitution.
“As disappointing as this decision is, the debate over marriage continues. We believe voters — not activist judges — should decide the definition of marriage,” the statement said.
All sorts of legal questions still exist with Wednesday’s court rulings, including how states with laws and constitutional amendments banning same-sex marriage will fare if they’re challenged in court.
“It’s impossible to know for sure what might happen in future cases” IU’s Widiss said. “It might [erode state laws] but it’s not clear yet how all the different pieces would shake out.”
Widiss said under the rulings handed down Wednesday, if a same-sex couple married in a state which recognized same-sex marriages moved to Indiana, that marriage wouldn’t be recognized under Indiana law.
After Wednesday’s decision, “What’s not clear is whether they’d be married for the purposes of federal law. But they’re definitely not married for the purposes of Indiana law,” Widiss said.
State Rep. Eric Turner, the Cicero Republican who’s carried the same-sex marriage ban amendment, said court’s rulings don’t affect the 36 states where either laws or constitutional amendments are in place.
“I am encouraged that states can still make their own decisions on the definition of marriage,” Turner said.
But Indiana Attorney General Greg Zoeller, who’s expressed concerns that throwing out the DOMA law would have an “eroding” effect on state marriage bans, predicted more legal challenges to come.
Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup. Scott Smith can be reached at firstname.lastname@example.org