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GOP advances same-sex marriage ban



When Casey O'Leary and Jenni White first met each other during a production of The Vagina Monologues at the Unitarian Universalist Church of Indianapolis, they never would have guessed that they would be married at the same church two years later.

At least White, 35, would have never guessed it.

"When the show was over I asked her out and she had no idea why I still wanted to hang out after we were done with the show," O'Leary, 36, told NUVO. "Then she sort of figured it out. And we've been together ever since."

The two women plan to be married next month in Indianapolis, but they aren't naive about Indiana's laws regarding gay marriage. The Unitarian Universalist Church of Indianapolis where they are members recognizes marriages of all couples – both straight and gay.

"We were both aware that the marriage wouldn't be considered legal at this point, but we're hopeful and always have been hopeful that Indiana would follow the lead of other states that have made it legal," O'Leary said.

So while they will be technically married in the church, they will not be able to enjoy the myriad legal benefits conferred upon straight married couples. In Indiana, they aren't even eligible for the benefits available to gay couples in civil unions, as is the case in some other states.

"I understand that for a lot of people it's a moral issue for religious reasons," O'Leary said. "They believe that being homosexual is immoral. But I'm expected to pay taxes and I'm expected to be a good citizen."

The chances of meaningful reform toward Indiana marriage equality are looking dim, if not downright unrealistic. Equality suffered a major blow last week when the Indiana House of Representatives took the first step towards making its same-sex marriage laws some of the harshest in the nation.

By an overwhelming 70-26 vote, the Indiana House passed House Joint Resolution 6, which, if instituted, would not only ban gay marriage in the Indiana constitution, but also anything "substantially similar" to marriage — including civil unions. Currently, 30 other states have constitutional gay marriage bans, and 20 are about as strict as the legislation proposed in Indiana.

Suddenly, despite years of unsuccessful attempts to get a same-sex marriage ban in the Indiana Constitution, the ban looks like it might have a chance in a Republican-led Statehouse.

To O'Leary and White, it just feels like more discrimination on top of what they already feel.

"Having been a good citizen of this state, and then to be told that somehow I'm less worthy of a marriage license, is just infuriating," O'Leary said. "It makes no sense."

Cold feet

Constitutional changes – like last November's amendment cementing state property tax caps – are not easy to make, and the resolution has a long road ahead.

The successful House vote sends HJR 6 to the Senate for a vote. If it passes, the ban must pass both chambers a second time under a separately elected legislature – at minimum, two years from now. A public referendum on Election Day would enshrine it in the Constitution.

But last week's vote in the House was a noticeable change from years past when the resolution perennially died in the Democrat-controlled House. The last time a constitutional ban on same-sex marriage passed the House was in 2005. It has passed four times in the Senate since then.

While it doesn't seem like O'Leary and White will have a problem with cold feet, the same can't be said for many House Democrats with regard to the marriage ban. Eleven of them broke ranks to support the legislation. One Republican voted against it.

Perhaps the most surprising vote came from Minority Leader, Rep. B. Patrick Bauer (D-South Bend). As the former Speaker, he was instrumental in blocking such legislation in past sessions.

"We're very disappointed in Representative Bauer," said Rick Sutton, President of Indiana Equality Action, a gay and gender rights advocacy coalition."His vote was a complete surprise. We're shocked, disappointed, we're disgusted."

Bauer's motives are unclear. Numerous requests for comment from NUVO were not returned by Bauer or the resolution's coauthor, Rep. Dave Cheatham (D-North Vernon), also a Democrat.

Some inside the Statehouse note that, with little to lose in the minority, House Democrats are more concerned with protecting their right flank in view of November's huge electoral losses.

In some cases, at least, socially-conservative Democrats may have felt freer to support a measure the 60-member Republican majority would have passed anyway.

"From the first day I announced my candidacy for state representative in 1998, I was clear about the values I held on 'social' issues," wrote Rep. Peggy Welch (D-Bloomington), in a prepared letter she shared with NUVO, noting that she had voted for the resolution once before, in 2005. "I have attempted to be transparent."

Whatever the reason, advocates and gay couples worry that with Republicans running the show and Democrats unwilling to mount a serious public opposition, there's little standing in the way of the bill's passing on this first run through the Statehouse.

"It's a difficult climate to stand up for the right thing," Sutton said. "We're told that (Bauer) wants to allow this to go to the voters. But last time I checked we elected representatives to make decisions."

Straight and narrow

With so many major issues occupying the Statehouse, like the economy and education reform, it's a curious time for the legislature to spend its energy passing a same-sex marriage amendment – especially considering same-sex marriage is already illegal in Indiana.

But while Indiana code states that "only a female may marry a male," and "only a male may marry a female," supporters of the resolution want to make sure the law can't be overturned in the courts someday, as it has been in other states.

"We are ensuring that our current law, which the vast majority of Hoosiers support, is not overturned by an activist judge," said the resolution's author, Rep. Eric Turner (R-Marion) in a statement after the bill passed.

Indiana University law professor Deborah Widiss said that was poor justification because the court has already upheld the law.

"The Indiana courts have looked at the Indiana constitution and said Indiana's marriage law is perfectly constitutional under the Indiana Constitution," Widiss said. "There's no reason to think that analysis would change in the future."

But some supporters, like Curt Smith, president of the Indiana Family Institute, a socially-conservative Christian group associated with Dr. James Dobson's Focus on the Family, argue that the broader intent is to reinforce the existing institution of marriage. Like the ban's detractors, he pointed to the fact that same-sex marriages are already illegal; the bill, hence, would not technically create any new discrimination, he said.

"It's good public policy to take that jurisdiction out of the courts and allow the people to speak and define such an important and seminal relationship," Smith said."At a time when divorce rates are high and a number of couples are choosing not to marry, it is a good public policy step for states to affirm their primacy in family law."

Law of unintended consequence

While a constitutional ban would keep gays from enjoying some of the rights reserved for straight people, it could also result in broad, negative consequences lawmakers might not have intended, Widiss said.

Especially problematic is a clause in HJR 6 that says legal status identical to or substantially similar to that of marriage will not be valid or recognized for unmarried couples of any gender.

"Because that language is so broad, and because it would be in the constitution, it would impact how all those other laws are analyzed," Widiss said. "That's why things like the domestic violence laws or domestic partner benefits are impacted by constitutional amendments like this one."

Widiss pointed to Ohio – which has gay marriage laws similar to the ones proposed in HJR 6 – where two judges ruled that the state's domestic violence laws did not apply to unmarried straight couples, because of the constitutional language in the gay marriage ban.

"Ultimately, the Ohio Supreme Court disagreed and said the domestic violence law still could be enforced," Widiss said. "But who knows how many people in the interim weren't able to get protective orders. They have suffered considerably under that interpretation. And here we don't know how the Indiana courts would resolve a question like that."

State Rep. Scott Pelath (D-Michigan City) supports the language in the state code that bans gay marriage, but he, too, thought a constitutional ban was excessive.

"I believe a constitutional amendment on the same topic is redundant and unnecessarily divisive," especially the section that prevents civil unions, he said in a statement. "If enacted, this language will put a lot of lawyers to work."

Going nowhere

With little chance of getting their marriage recognized by the state, it would be understandable if O'Leary, an Indiana resident for 12 years, and White, a lifelong resident, moved to a state where gay marriage is permitted – or at least civil unions.

But that has never been an option for the couple, O'Leary said. Neither feels she should have to move. They both have children from previous heterosexual marriages and their roots are in Indiana.

"Both of our ex-husbands live locally and work locally," O'Leary said. "We would never think of trying to separate our children from their fathers. ... We want to live here and we want to make our lives here."

O'Leary, who was 32 when she came out, was married to a man and had children before realizing she was gay.

"I had thought I was straight my entire life," she said. "I married a man, was very happily married, and then fell in love with a woman and it just turned my whole life upside-down.

"It hasn't been easy, but meeting (Jenni) has been the best part of the entire journey."

Having only been out in the open about her homosexuality for about four years, O'Leary said feeling the discrimination personally – by way of a same-sex marriage ban, for example – was something new.

"This is the first time I've ever really understood what it feels like to be told that someone else has decided that what I want to do is not acceptable," she said.

But while it's frustrating for O'Leary to think about living in a state where, as she said, "discrimination could be written into the constitution," she and White don't have much time to be too worried about what could happen three years from now.

They have a wedding to get ready for.

"We're sort of a modern family, but we're a good family," O'Leary said. "It's just sad to think that so many legislators could just so easily make a decision that affects us so deeply."


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