Indiana’s same-sex marriage amendment must die in the Legislature

“Let the people decide.” That’s the argument offered by proponents of the legislation to amend Indiana’s constitution. I won’t bore you with the process, but in short, if Indiana’s legislature approves the proposed amendment, the question goes to the voters in November.

Why am I writing about this controversial topic? Because I feel it’s my duty as a lawyer and a citizen to stand up and say that Indiana’s constitution should not be amended in this fashion. As one educated in the law and with an understanding of the structures of government and a society, I have an obligation to speak out.

Currently, Indiana has a statute that says a marriage is valid only if it is between a man and a woman. Feeling that may not be enough protection for “traditional marriage,” some in our state feel it necessary to amend Indiana’s constitution to prohibit same-sex marriage (or any relationship that is substantially similar).

“Let the people decide.”

That sounds like a great idea, really. Why should 100 Indiana Representatives and 50 Senators get to be the decision makers on important issues? Why not let the voters decide?

The answer is simple: because we live in a representative democracy. We elect people to make these decisions—in fact, they already did when they enacted the statute that prohibits same-sex marriage. (I would like to see that statute repealed, but that’s a discussion for a different day.)

There’s another reason that “let the people decide” should fail as an argument: we are a nation (and a state) that believes in individual liberty. To protect the basic, core principles of individual liberty, our national DNA makes us uncomfortable with putting some things up to majority vote.

  • We would recoil at the idea of a majority vote on the question of whether I can practice the Roman Catholic faith.
  • We would recoil at the idea of a majority vote on the question of whether I can read To Kill a Mockingbird.
  • We would recoil at the idea of a majority vote on the question of whether I could marry someone of a different race.

Certain principles are so important that we have constitutional protections for them: free speech, freedom of religion, a free press, just to name a few. But other principles are so basic, so natural that we wouldn’t even think that constitutional protections should be necessary: the freedom to travel, the freedom to be friends with someone, the freedom to watch the Super Bowl (or to ignore it). Marriage between two consenting adults is one of those basic, natural, unquestioned freedoms that we wouldn’t dream of the need to include it in a constitution. The idea is so foreign that it would be like putting the freedom to breathe in the constitution.

“Let the people decide.”

The response to my argument probably goes something like this: “If the proposed amendment is so offensive to our genetically ingrained preference for freedom, then the people will surely reject it. So what’s the harm in letting it end up on the ballot in November?”

Here’s the problem I have with letting the issue make it to the ballot. Part of the reason we elect representatives to vote in our legislature is because we need people to put a damper on the popular passions of the day. We need people who can reject ideas because they run afoul of our constitutional principles. Ideally, our legislators would share the wisdom of the Founding Fathers (whose wisdom was imperfect) and make sure ideas that trample on individual freedom never see the light of day. Unfortunately, it appears that our current legislators fall short in this measure (or at least a sizable number of them do).

Indiana’s proposed constitutional amendment would deny people certain basic rights. A constitution is supposed to guarantee rights, not take them away. Anyone who has studied U.S. history, studied the debates surrounding the U.S. Constitution, studied the ideas underlying limited government knows this is true. In their gut, they know it. They may not like the idea of gay marriage, but they know the Indiana Constitution should not limit individual freedom.

It’s time for all of us who believe that amending Indiana’s Constitution to take away freedoms—any freedoms at all—to stand up and tell our legislators to kill this bad idea now. History will look back upon us one day, and history will look at what happened in this debate. Future generations will ask whether we spoke out against this injustice, and if we didn’t, they’ll want to know why.

Here’s your chance to be heard, and a tool to be used. Contact your legislators now.


4 thoughts on “Indiana’s same-sex marriage amendment must die in the Legislature

  1. Bill, as you wrote, “Part of the reason we elect representatives to vote in our legislature is because we need people to put a damper on the popular passions of the day.” I agree. And, it’s apparent to many folks that ‘same-sex marriage’ is a popular passion of the day, and our elected representatives who can damper that popular passion are simply carrying out the wishes of those who elected them.

    1. Thanks for your comment, Jason. Elected representatives have a bit of a tight rope to walk. They need to respond to what the electorate wants, but they also need to know when to tell the electorate that their idea is bad for reason X, Y or Z. They are supposed to be leaders, not “yes men/women.”

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