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How The Marriage Amendment Could Affect Same-Sex Benefits

When Bloomington resident Ellen Epstein contemplated the idea of marrying her partner, Jane Rogan, her first reaction was, no.

“I think it’s very heteronormative, and I don’t like how women are viewed,” she said. “I don’t even like the word ‘wife’ and ‘husband’ for the meaning that that carries.”

But Rogan wanted to put Epstein on her health insurance plan, which required the two be married.

“So again, the first reaction to it was pissing me off, making me angry that I’m being told how I have to be in my relationship,” she says. “And then I said, ‘Okay, let’s do it.’ It was about that fast.”

In December 2013, the pair headed to Vermont, where they had a friend ready to officiate the ceremony and where same-sex marriage was legalized in 2009.

Epstein and Rogan’s marriage is not recognized in Indiana. A 2004 statute bars the state from recognizing marriages performed in other states.

But a proposed constitutional amendment known as House Joint Resolution 3 could further threaten the benefits same-sex couples like Epstein and Rogan are receiving.

Here’s the entire text of HJR-3:

Provides that only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. Provides that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The resolution passed with ease through the Indiana legislature in 2011 as part of the amendment process. It must now pass the legislature again within the next three years (before the next statewide election). Then, it would go on the General Election ballot, where voters would need to approve it by a simple majority.

The Arguments from Supporters and Opponents

There are several arguments being made for and against the amendment, but they largely break down into two categories.

One is moral.

Charlene Braker traveled from Evansville to the statehouse this past week to join the crowd at the first House committee hearing for HJR-3 and support the amendment.

“This is defining families,” Braker said. “This is defining our way of life. This is defining the atmosphere children are going to grow up in. This is probably the biggest issue ever because this is going against biblical truths.”

Supporters, on the other hand, argue giving same-sex couples the right to marry is a basic civil right.

The other argument deals with the business side of things.

Freedom Indiana, a bi-partisan grassroots organization that was created last year to oppose the amendment, has been active in recruiting corporations and universities.

The group has largely focused on the second sentence of the proposed amendment .

“Provides a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Freedom Indiana members say the language is too vague and could threaten same-sex benefits companies and universities currently offer.

“It jeopardizes our ability to be competitive in global markets and to attract and retain top talent to our company,” Marya Rose, Columbus-based engine manufacturer Cummins’ general counsel said at this week’s hearing.

Here’s where the debate gets muddled.

Republicans introduced a new bill, House Bill 1153, as a “companion bill” to HJR-3, intended to clarify the legislative intent of the amendment.

Representative Eric Turner, R-Cicero, says opponents’ concerns about that second sentence are unwarranted.

“The marriage amendment does not take away or in any way change Eli Lilly’s or Indiana University’s, or any other employer, public or private, the ability to provide healthcare benefits to their employees and whoever they want to allow employees to include on their health plan,” he says.

Attorneys at the hearing last week gave contradicting testimony on whether the amendment and companion bill will create uncertainty over same-sex benefits.

Some argued if the amendment and companion bill both pass, courts will have to decide what benefits are valid and what types of relationships can be recognized.

Others testified that the companion bill makes clear that the amendment does not prohibit domestic partnerships.

Amendment Could Be Stuck In Committee

The resolution is still in committee. Judiciary Committee Chairman Greg Steuerwald ended the resolution’s hearing without a vote, saying he wanted to give legislators time to weigh the testimony.

At least three of the committee members appear undecided, including Wendy McNamara, R-Mount Vernon.

“I believe that marriage is between a man and a woman, but with this particular piece of legislation, I’ve had concerns over the second sentence, as others have as well,” she said the day after the hearing. “I continue to digest the information I received yesterday to try to pay attention to how that would affect us.”

The committee could vote on the measure as early as next week, but with so many committee members undecided, House Speaker Brian Bosma suggested to the Times of Northwest Indiana he could take measures to move the legislation through more quickly by either moving the amendment to a new committee or replacing committee members.

“I’ve said one person shouldn’t make the decision; we’ve got to figure out if a couple people ought to make the decision for all Hoosiers,” Bosma said. “The speaker, of course, has the power to move bills and has complete autonomy over committee membership.”

The rules of the Republican-controlled Indiana House authorize the speaker to change a committee’s membership at any time, though Bosma said he’s never done it before to advance legislation, and he only could recall seeing it done once during his 28 years in the House.

“Our rules clearly provide for it,” Bosma said. “Members serve at the pleasure of the speaker.”

Meanwhile, the fight outside the statehouse rages on.

Conservative group Advance America bought TV ads urging voters to encourage their legislators to vote yes.

Freedom Indiana volunteers are taking a grassroots approach – working the phone banks and urging voters to tell their legislators to vote no.

Jane Rogan says the message Freedom Indiana is trying to get across is hitting home for a lot of people.

“There are plenty of people who know gay people who realize this amendment will hurt their friends,” she says. “I think that’s the strongest message you can send. If it’s just simply people like me and Ellen saying, no this is bad for me and Ellen, then it’s not going to get much traction. It’s those people who I think over time who are going to be the ones that change people’s minds.”

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