RUSTHOVEN: The House made the right decision

In January, this conservative testified to the Legislature on behalf of Freedom Indiana against the then-version of the proposed Indiana constitutional amendment on gay marriage. Here’s why.

An Indiana constitutional amendment must be passed by successive legislatures before being submitted to voters for ratification. This amendment, as first passed in 2011, stated: “Only a marriage between one (1) man and one (1) 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.”

My opposition focused on sentence two.

Conservatives believe law should be clear. But no one could know what the Legislature would or would not be permitted to do under the amendment’s second sentence.

For example, would it bar laws recognizing and establishing consequences of entering and dissolving same-sex civil unions? According to news reports, House Speaker Brian Bosma and Senate President Pro Tem David Long had different answers.

How about same-sex domestic partnerships? Ask Wisconsin, which adopted the same constitutional amendment in 2006 and has been embroiled in litigation since 2009, when its Legislature enacted domestic partnership legislation.

Ironically, Wisconsin combatants now take opposite positions from what they said when the amendment was proposed. Then, proponents assured it wouldn’t bar domestic partnerships. Opponents warned otherwise. Now, amendment opponents defend the 2009 legislation against constitutional challenge by amendment supporters. Wisconsin’s supreme court will decide.

This highlights my other core reason for opposing the “second sentence” version of the Indiana amendment. Conservatives believe “who decides” is as important as “what’s decided.” Decisions on marriage and its legal consequences, on what relationships will and won’t be recognized, historically have been made by the people through their elected representatives.

As previously written here (“Let lawmakers decide gay marriage,” April 15, 2013), that’s as it should be. As an example, most agree there are huge differences between polygamy and traditional marriage, and polygamy and gay marriage. Few gay marriage supporters, even those who believe “equal protection” or other federal constitutional guarantees compel its recognition, make that argument about polygamy.

But if the courts decide such issues on the theory that the “state can’t discriminate among different private choices about intimate relationships,” it is hard to see how traditional marriage and same-sex civil unions or domestic partnership choices must be permitted, but polygamy and a host of other “choices” may be prohibited.

The only basis for judges to make such distinctions is their own views on the validity of particular private choices. Such decisions are not judicial. They are classically legislative.

The Indiana amendment’s “second sentence” was defended as taking such decisions from the courts. But all agree it had no effect on judicial decisions under the federal constitution. The question was its effect under Indiana’s constitution.

My judgment, shared by many in both parties, was that Indiana courts would be given final say on permissibility of future decisions about recognizing and establishing legal consequences of particular domestic relationships among consenting adults.

I respect Indiana courts, but that’s not their job. That’s our job as citizens—citizens whose collective judgments may change over time—acting through those we elect to enact our laws on domestic relations and other traditional legislative topics. To this conservative, the House’s bipartisan vote eliminating the second sentence from the proposed amendment was wise.•

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Rusthoven, an Indianapolis attorney and graduate of Harvard College and Harvard Law School, was associate counsel to President Reagan. Send comments on this column to ibjedit@ibj.com.