As reported here and elsewhere last night, a proposed constitutional ban on marriage equality in the state of Indiana has being experiencing a bit of an uphill struggle of late. Not that I'm terribly disappointed of course but it is nonetheless interesting to see the process play out.
The stalwart diarist whose work I've linked to above asked me if I'd consider fleshing out a comment I made in response to his posting so...let's see if I can't come up with something worth reading, below the Orange Curlicue.
I should make a couple of disclaimers before I proceed any further. I have precious little connection with the State of Indiana. I have a couple of friends who grew up there; another friend of mine, a lesbian, move there a year or two ago with her partner. The move was made with some reluctance; I am not privy to all of the details. I know other gay and lesbian couples who've made reluctant moves to states less favorable to their civil rights as well.
I am not an expert on any state's constitution or constitutional law in general. Some obvious nuances may well escape me. I'm sure others will be more than happy to fill me in (one favor: since I am not a professional, please don't treat me like one; I'm just doing my best using all the information I've gleaned while following the struggle for marriage equality for a long, long time.)
Background: I think I'm on pretty solid ground when I note that in Indiana, in order for a measure amending the state's constitution to be placed on the ballot it must be approved in two consecutive two-year legislative sessions. The wording of the ballot measure that is approved by legislative vote must be identical each time the legislature votes on it. The original, approved in the 2011-12 session, was passed in 2011. It must be passed again this year to make it onto the ballot this November. Otherwise the process will have to start over.
The text approved in 2011 reads as follows:
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
There has been a good deal of controversy over the entire measure beginning some polling results indicating that the ballot measure as worded above would fail when submitted for a vote by the public. More controversy was added a couple of weeks ago when the Speaker of the state House of Representatives, upon discovering that the bill not pass in the committee he'd originally assigned it to, moved it to another committee he was sure of getting support in. This took place after he'd threatened to remove from the first committee any members who didn't vote his way. After being re-assigned, the bill was passed and moved on for consideration by the entire House which voted on it yesterday (Monday).
What happened in the vote of the full House was that the bill was passed but only after being amended, striking the second sentence. Consensus seems to be that the action was taken as the result of very strong lobbying by state businesses and public universities which would find themselves at a disadvantage in recruiting well-qualified candidates for jobs if some of those candidates were LGBT and did not want to move to a state hostile to their interests when there now exists an increasing number of states which have or are, in the case of Illinois, about to have marriage equality and that there was a potential that the legality of domestic partnership benefits offered by public universities, local governments and even possibly private businesses might be called into question based on a reading of the originally-worded amendment.
Because of the constitutional requirement that the bill be passed in exactly the same form in two consecutive sessions, even if the Senate votes to approve the amended bill, the resulting amendment would need to approved again in the 2015-2016 legislative session before being put before the voters. At any rate that is how things should work, though I have read elsewhere (though have not been able to locate right now) suggestions on the part of some in the legislature that they would attempt to put a revised measure on the ballot this year to challenge the requirement for constitutional amendments, which if understand correctly is of relatively recent origin and to this point has not been subjected to any tests.
As I noted in my comment there are several ways this whole thing could pan out and not a single one of them will be a positive for the raging right-wingers of Indiana.
Possibility 1: The Senate approves the revised bill and it is decided that it will have to be voted on again in the next legislative session before going to the ballot.
Possibility 2: The Senate votes to restore the language removed by the House; it goes back, passes, goes on the ballot and either a) gets approved thus initiating litigation that the state will lose or b) does NOT get approved (as polls are indicating is a distinct possibility), which would be simply delicious.
Possibility 3: The amended language gets approved and the House and Senate decide to attempt an end-run around the rule that the precise wording must be approved two consecutive times. This has apparently also been considered though I have been unable to locate the articles where I've read about this. You can count on that sort of thing being litigated which will NOT make the R's win even if they win the suit. The courts may not (or may not want to) rule quickly enough for the ballot measure to show up this year. Additionally, by virtue of such litigation the whole thing will have become completely toxic to a significant portion of the voting public, which is increasingly on the side of marriage equality even in many red states, perhaps including Indiana. And, should the state's courts somehow permit the measure to be placed onto this year's ballot despite being a clear violation of the underlying law, see Possibility 2, parts (a) as well as (b).
There are of course additional possibilities, up to and including the one that, regardless of how things turn out in Indiana, any and all such laws and constitutional amendments could be found to be impermissible under (what I view as a correct reading of) the Fourteenth Amendment to the US Constitution.