Bil Browning

Substantially Similar: IN & KY Marriage Amendments

Filed By Bil Browning | February 13, 2014 11:00 AM | comments

Filed in: Politics
Tags: constitutional amendment, federal courts, gay marriage, Indiana, Kentucky, marriage equality, same-sex marriage

bigstock-Two-ryukin-goldfish-in-contras-20322359.jpgPart of Kentucky's anti-marriage equality amendment was struck down yesterday by a conservative federal judge appointed by George Bush. So how could this affect Indiana's amendment battle?

The Indiana state senate will vote today on a proposed constitutional amendment. The state house of representatives voted last month to alter the amendment by removing its second sentence. A senate committee approved the amendment without the second sentence, but senators can still add in back if they choose today.

The original text of the amendment read:

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.

Here's the text of Kentucky's anti-marriage amendment:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The judge in Kentucky ruled yesterday that it was unconstitutional for the state not to recognize out of state marriages performed in a jurisdiction where same-sex marriage is legal. In effect, the judge came to the same conclusion that Indiana House members did - the second sentence of Indiana's proposed amendment is blatantly unconstitutional.

If the Senators are smart, they'll notice that other state amendments are being struck down all over the country - and those cases always rule that the first part of Indiana's would-be amendment is unconstitutional. The Senators should read the tea leaves and save the state all of the bad publicity, wasted time, and the certain financial cost the immediate court cases would spawn.

I wouldn't count on logic to prevail today. Passing the amendment with only the first sentence provides them the political cover they need to kick the can further down the road. Removing the first sentence satisfies LGBT activists because the amendment won't be on the ballot this year and gives them even more time to organize. Passing the changed amendment allows rural conservatives to "prove" their anti-gay bona fides and fend off primary challengers.

The one-sentence-only version of the amendment will have to pass a separately elected legislature (in 2015 or 2016) and conservative Governor Mike Pence has said he doesn't want it on the 2016 ballot when he's up for re-election. It's all about political theater at this point; in the end the legislation will die a slow death from neglect over the next couple of years. With so many court cases wending their way through the system currently, same-sex marriage could be legal nationwide by 2016.

In his ruling in the Kentucky case, Judge Heyburn wrote that while "religious beliefs... are vital to the fabric of society... assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons."

"It is clear that Kentucky's laws treat gay and lesbian persons differently in a way that demeans them."

Here's hoping Indiana's state senators come to that realization by this afternoon. Political posturing, however, will likely rule the day.

The Senate will vote today at 1:30pm Eastern time.


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