Jerame Davis

Indiana Marriage Lawsuit Is Carpetbagger's Game

Filed By Jerame Davis | March 08, 2014 9:30 AM | comments

Filed in: Living, Marriage Equality, Politics
Tags: constitutional amendment, HJR-3, Indiana, marriage equality, marriage lawsuit, same-sex marriage

Flag-of-Indiana.jpgEarlier this year, the Hoosier LGBT community came together in an unprecedented coalition that included all of the state's Fortune 500 companies and other business groups, most of the universities and colleges, and other civil rights organizations to fend off a proposed constitutional amendment to ban same-sex marriage. They were barely successful in getting the amendment off this year's ballot, but together they accomplished the seemingly impossible.

Yesterday, four same-gender couples from Indiana filed suit to challenge the state's statutory marriage ban. The lawsuit was filed by a Kentucky law firm that was part of the successful case to force that state to recognize legally performed same-gender marriages from other jurisdictions.

All of this sounds really great and wonderful, but don't be fooled. This lawsuit is incredibly ill-timed and could have significant unintended consequences that could have - should have - been avoided.

Those Who Don't Study the Past

In 2002, the Indiana ACLU filed suit on behalf of three couples in state court to overturn the statutory ban on marriage equality. The case, known as Morrison v. Sadler, was a monumental failure on multiple levels. Legally, the case was unsuccessful at both the circuit and appeals court levels.

The effect on the community was a firestorm of recriminations and consequences that set back the equality movement by a decade. Ken Falk, the head of the Indiana ACLU at the time, did not consult with the leaders of the LGBT community before filing suit and most were blindsided by the news. After years of work, the nascent LGBT equality movement had finally gotten support for a statewide nondiscrimination bill to be introduced for the first time.

Of course this wasn't public knowledge at the time - it often takes years of behind-the-scenes work to get a piece of legislation introduced - but advocates would've been happy to share that news and explain how a poorly-timed lawsuit could upend the whole thing.

Instead of the first pro-LGBT bill in the state's history, activists saw the efforts to ban the freedom to marry kicked into overdrive. Fearing the statutory ban might not hold up in court, lawmakers made their first attempt to pass a constitutional amendment banning same-gender marriage and civil unions in 2004.

By 2006, even though plaintiffs had lost their appeal in 2005, the anti-equality movement hit a fever pitch with then Indiana House Minority Leader Brian Bosma (now Speaker) calling the anti-marriage equality amendment, "the most critical piece of the people's business."

In the fallout from this major misstep, the Indiana LGBT and progressive communities came to an understanding; there would be no more lawsuits regarding marriage equality without a clear path to victory and ample consultation with the LGBT community leadership in the state. This was one of the few points of agreement that was nearly universal in the Hoosier LGBT activist community.

Are Doomed to Repeat It

Now, we have a group of individuals, who seemingly haven't been involved in the equality movement for long, retaining lawyers from another state (who don't know this history and don't have any vested interest in the consequences it could bring on the Indiana LGBT community) filing a new federal lawsuit.

Let me be clear - I don't begrudge anyone the right to fight to marry the person they love. I'm thrilled beyond belief that marriage equality cases are moving forward in nearly every state in the union. This is a good thing. These couples should not have to wait another moment for their equality; none of us should. That doesn't mean they shouldn't know the impact of their decisions on the broader community.

I don't blame these loving couples for wanting their equality right now - but their attorneys showed poor judgement in the timing of the filing and the lack of coordination with in-state advocates. It's simply inexcusable and irresponsible not to coordinate with the rest of the state's efforts.

I'm sure the advice most of those advocates would have been to wait - just another week - until the Indiana General Assembly adjourns sine die and this year's hellish legislative session has come to an end. These hard-working folks only stopped the proposed marriage discrimination amendment from being put on this year's ballot for referendum by the skin of their teeth.

Not a small number of the legislators who voted to soften the amendment (and thereby delayed it from going to the ballot this fall - ensuring it a certain death as popular opinion continues to rise) did so because they saw no "threat" to the status quo in Indiana on the horizon. Now there is.

And Others Pay the Price

With the General Assembly still in session, legislators now have a chance to revisit the amendment and use procedural maneuvers to resurrect it, put it on the ballot this year, and cost the community (nationally and locally) millions of dollars in a ballot referendum fight. This lawsuit has given the anti-equality crowd a new rallying cry and the technical means to do something about it.

That's not to say that revival of the more draconian amendment is probable (though it's not totally clear it's impossible). What is more likely is some other retributive anti-LGBT measure will be tossed into the last minute shuffle. We've already seen other anti-LGBT legislation attempted in the state as seeming retribution for altering and delaying the amendment. Now the same rabid homophobes - who've already performed unprecedented legislative jujitsu to enact their anti-equality agenda - have been given a week to rally support for screwing Hoosier LGBT people with a last minute Hail Mary.

More importantly, the lack of consultation or consideration for the strategies and tactics - both public and private - of the existing LGBT equality advocates in Indiana by an out-of-state law firm is insulting and undignified. It's also dangerous - there's no telling what behind-the-scenes, non-public strategies their decision to file first and ask questions later could impact.

The battle for marriage equality in Indiana has been ongoing for over a decade. As advocates scored their first win and started preparing to go on offense for the first time, a carpetbagging law firm from out of state has thrown everything into jeopardy. If the firm and the four couples truly cared about anything other than themselves, they would have checked in and joined a long-standing effort instead of only seeking glory for themselves at the expense of everyone else.

The amazing volunteers and staff who have been part of Freedom Indiana, Indiana Equality Action, and other efforts over the years deserve better - as do the rest of my fellow Hoosiers. While those four couples may win their licenses, the rest of the state's LGBT population will continue to suffer the wrath of vindictive legislators and anti-gay hate groups.

What a difference a week makes.

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