Same-Sex Marriage Ban Could Create Unintended Results

BLOOMINGTON, IN  -- A proposed resolution that would amend the Indiana Constitution to ban same-sex marriage is a bad idea with far-reaching implications, according to an Indiana University Maurer School of Law expert.

"Whatever you might think about same-sex marriage, a constitutional amendment to prohibit it is a mistake," said Associate Professor of Law Deborah Widiss. "Similar amendments in other states have led to unintended consequences that can be hard to correct."

Widiss cited instances in other states where constitutional amendments have been used to strip away health-care benefits from same-sex couples. Amendments have also been used to argue that domestic violence laws are inapplicable not only to same-sex couples, but also to unmarried different-sex couples. "This is a result that supporters of the amendment surely did not intend, but it illustrates the risk of enshrining such language in a state's constitution," she said.

The amendment proposed in Indiana would make it impossible for the General Assembly to create any kind of civil union or domestic partnership status for same-sex couples. "Even if Indiana doesn't grant same-sex couples the right to marry, we should at least keep open the possibility of creating some other legal status that will protect Hoosier couples and their children," Widiss said. "It is simply a bad idea to use the constitution to discriminate against families."

Widiss pointed out that a constitutional amendment would not only be dangerous, but also unnecessary. "We already have a law that clearly defines marriage as between a man and a woman, and Indiana courts have upheld it. There is no reason to change the constitution, especially since it could create unintended and unfortunate results."

On Feb. 7, the House Judiciary Committee of the Indiana General Assembly voted 8-4 in favor of the amendment. To become law, it must be approved by both the House and the Senate in two separately elected sessions before being submitted to the electorate. The earliest that the amendment could become effective is 2014. At least 29 states have added gay marriage bans to their constitutions.

An expert on family law and marriage rights of same-sex couples, Widiss has authored several amicus briefs in support of these rights. In 2008 she received an award from the Williams Institute at the UCLA School of Law for excellence in scholarship addressing sexual orientation or gender identity.