(The question does stand: What newspapers, if any, are on record since the start of this session in supporting this amendment as currently worded?)
Advocates of a state constitutional amendment to ban gay marriage contend the amendment is needed so the will of a majority of Hoosiers prevails over a future ruling of some court. Unless the language of the proposed amendment is changed, however, it will create exactly the situation advocates insist they want to prevent.
At issue is this phrase: "This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups."
Does this mean, as the amendment's advocates say, that the state cannot force companies to offer insurance and other benefits to the domestic partners of employees? Or does it mean, as opponents fear, that companies would be prohibited from offering such benefits?
If the proposed language becomes part of the state constitution, those questions will undoubtedly end up in litigation. The answer will be determined by, yes, judges.
Indiana already has a law banning gay marriage. But advocates of amending the constitution fear a judge will someday overturn it. The amendment would "put the issue beyond the reach of an activist judiciary," state Sen. Brandt Hershman, R-Monticello, said during a House committee hearing Wednesday. "Activist judiciary," of course, has become a buzz phrase that anyone who disagrees with a court decision uses to describe the judges who wrote it. Those who agree usually say the judges correctly interpreted the law.
The proposed amendment to the constitution's Bill of Rights has the paradoxical and unprecedented effect of taking away rights. But if a strong majority of Hoosiers believes an amendment is necessary, remove the troublesome clause and keep the succinct and clear remaining language: "Marriage in Indiana consists only of the union of one man and one woman."
Removing the problematic clause would avoid the dreaded prospects of judges actually having to interpret a law - something the amendment's proponents claim is paramount. More importantly, it would remove any ambiguity regarding employers' ability to choose to offer domestic partner benefits.
Proposed constitutional amendments must pass two separately elected sessions of the legislature, then go to voters in a statewide referendum. Because the General Assembly approved the current language once, removing the "incidents of marriage" clause would start the process over, meaning that Hoosiers would vote in 2010 instead of 2008. Seeing no pending emergency, waiting two years is worth it.