Filed last week, a new federal lawsuit seeks to overturn Indiana state’s 2004 ban on marriage equality, otherwise known as Indiana’s Defense of Marriage Act (IDMA).
Currently, as well as not recognizing marriages within the state, the ban also deems void any same-sex marriages carried out in other states and, as the ban also covers civil unions, same-sex couples have absolutely no chance at any meaningful recognition for their relationships. The four couples behind the suit challenge that the IDMA therefore infringes on their 14th Amendment rights.
Those plaintiffs include Jo Ann Dale of Otisco and Carol Uebehoer, who were married in Massachusetts six years ago. They cite a number of problems the ban creates for them, including the fact that Indiana forces them to submit separate tax returns despite the fact that the federal government recognizes their marriage. The couple also says that while there are some limited federal protections in place, they worry about whether their relationship will be recognized when it comes to medical and end-of-life decisions, things that would be automatic if they were a heterosexual couple.
Another couple involved in the suit is Melissa Love and her fiancee Erin Brock. They argue that the ban impinges on their ability to access more than 1,000 of the rights associated with marriage. They want to get married in their hometown and have that marriage recognized by their state, but are denied that right, the suit says, simply because the state disapproves of their relationship.
Interestingly, the plaintiffs’ team of lawyers includes legal experts that have (so far) successfully challenged Kentucky’s marriage equality ban on 14th Amendment grounds. There are of course details about the Indiana suit that make it unique, however.
This challenge is at least in part motivated by the fact that the Republican controlled legislature this year attempted to put before voters at the November ballot a constitutional amendment which would have written the state’s existing anti-gay discrimination into the state constitution.
Thankfully, the effort was defeated on a technicality: the state Senate chose to change the language of the amendment and removed the amendment’s ban on civil unions. Due to the fact that the proposal has been amended, it means the question cannot go on the ballot for another two years because a constitutional amendment must be passed by two different legislatures in consecutive terms without being altered. The fact that lawmakers did seek to water down the amendment, however, was seen as a victory in itself because it signaled a recognition that the amendment would have been so blatantly antagonistic to civil rights that it could not have withstood a court challenge.
The threat of the watered down ban remains strong though, and the timing of the suit seems ideally placed to try to forestall any future attempts by the Republican controlled legislature at passing a constitutional amendment. It also neatly provides the perfect example of the kind of discrimination and indeed the LGBT community’s political powerlessness to stop that discrimination that will have to be established for a successful federal claim.
For his part, Indiana’s Attorney General Greg Zoeller has issued a call for civility, saying that while he will defend the ban he wants a good clean fight. “People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court.”
There are now numerous challenges to state gay marriage bans and constitutional amendments, all of which seem destined to knock on the Supreme Court of the United State’s door. Whether the Indiana challenge will be among them remains to be seen, but what does seem likely is that before Indiana’s lawmakers can once again put a constitutional amendment to ban same-sex marriage before the voting public, the Supreme Court will for the first time have issued a decision on the very particular question of whether a state’s right to self-government extends far enough that it can eclipse the civil rights of same-sex couples.
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