The elephant in the room as the General Assembly prepares to convene is one of its own creation. House Joint Resolution 6 lumbers into the Indiana Statehouse next month destined to create a distraction from the business the GOP-controlled legislature would prefer to have voters see in an election year.
In wading into the social issues battlefield their former party leader once warned against, GOP legislative leaders set the scene for a conflict they undoubtedly wish they had avoided. Moreover, what they do in the coming session ultimately will make no difference. Same-sex marriage is coming to Indiana. Look for its arrival by one of these routes:
The U.S. Supreme Court: The court in June overturned the federal Defense of Marriage Act, which prohibited recognition of same-sex marriage. While the justices declined to assert a constitutional right for two men or two women to marry, lawsuits working their way through courts across the nation could produce the precedent-setting case. It was a law banning interracial marriages that resulted in the 1967 Loving v. Virginia decision.
SCOTUSblog publisher Tom Goldstein writes that marriage-equality test cases are moving rapidly.
"Roughly ten cases are already pending," he notes in a recent post. "Technically, the Justices could stay out of the fray; nothing requires them to hear such a case. But realistically, the question of whether the traditional definition of marriage is unconstitutional is so important that the Court must decide it."
Goldstein raises the possibility that the Supreme Court might initially rule against same-sex marriage advocates, although he notes the decision would "almost surely be overturned after social attitudes have evolved further."
A state lawsuit: In his dissent in the DOMA decision, Justice Antonin Scalia charged that the majority opinion purported to support states rights, but actually provided a road map for challenges to state bans. One such challenge could overturn Indiana's ban, which exists whether it is written into the constitution or not.
The Indiana Court of Appeals in 2005 rejected a challenge by three gay couples to the current state law, which prohibits recognition of legal same-sex marriages from other states.
The appeals court upheld a lower court decision to dismiss the couples' lawsuit on grounds that state law clearly defined marriage as a union between a man and a woman.
"What we decide today is that the Indiana constitution does not require the governmental recognition of same-sex marriage, although the legislature is certainly free to grant such recognition or create a parallel institution under that document," the court said in its ruling.
House Speaker Brian Bosma said at the time that the ruling reinforced the need to "positively protect marriage" with a constitutional amendment, while Charlotte Egler, one of the plaintiffs, predicted that opinions would change.
"Temporarily, this is a disappointment and a defeat, and in the long run attitudes change and people get to know their neighbors," Egler said. "Opinion is going to change, and laws are going to change to reflect that."
Public opinion: Sixteen states and the District of Columbia now allow two men or two women to marry. Poll after poll shows growing support for gay marriage.
In Indiana, a recent survey by WISH-TV and Ball State University found 58 percent of respondents oppose HJR 6; 48 percent want to legalize same-sex marriage.
Freedom Indiana, the bipartisan coalition formed to fight HJR 6, has rallied an impressive roster of opponents: Fort Wayne Mayor Tom Henry and his counterparts in most major Indiana cities, many of the state's colleges and universities, Indiana University Health system, the Indy Chamber and – as of last week – Greater Fort Wayne Inc. They've also enlisted the powerful voices of corporate heavyweights, including Eli Lilly, Cummins Engine and Emmis Communications.
Those opinions matter to lawmakers, but so do the views of voters. If Indiana lawmakers stick to their plan to let the electorate decide, they risk repeating the example of Minnesota, where a Republican-initiated push for a constitutional referendum backfired on its supporters. When the proposed amendment went before voters there last November, it drew Democratic voters out in force, defeating not only the referendum but also costing the GOP its majorities in both the House and Senate.
Energized by their success in defeating the constitutional amendment and electing Democratic majorities, same-sex marriage supporters pushed for legalization of gay marriage. The bill was approved and signed into law in May.
Indiana's GOP leaders are probably too smart to repeat the mistake of their Minnesota brethren. Concern for their own electoral success inevitably will overcome enthusiasm for banning same-sex marriage and they won't risk pulling young and liberal voters to the polls.
In time, however, those voters will seek to undo the current ban and join the growing list of states choosing to extend rights instead of restricting them.