So, what are the lessons of HJR-3?
There are many.
First, many Hoosiers came to recognize and oppose the second sentence, which the Indiana House removed and the Indiana Senate refused to restore. This second sentence would have prevented future legislatures from enacting any type of civil union or domestic partnerships. The family groups told us it was essential to prevent the constitutional amendment from falling prey to legal challenges. The opponents told us it would almost certainly be challenged in the courts anyway. There was little agreement on what it meant. It was confusing and divisive.
Senate President Pro Tempore David Long explained after last Monday's vote, “Why would we send something to the voters that’s constitutionally questionable? I think HJR-3 in its original form could have crashed and burned this fall on the second sentence. I think the whole discussion would have been on that and not about what we’re really talking about, which is about traditional marriage and whether it should be in the constitution or not. It’s the right thing to do to send it to another vote before the General Assembly. If it passes again, it will be put before the voters in 2016.”
Secondly, independent media polling has revealed a shift in the public. In a 2005 Indianapolis Star/WTHR-TV Poll, 56 percent supported the amendment. In 2007, it fell to 49 percent. In October 2012, a Howey/DePauw Indiana Battleground Poll found 48 percent support. And in a Howey Politics Indiana Poll in April 2013, 50 percent favored the amendment (House Speaker Brian Bosma acknowledged HPI polling mirrored House Republican Campaign Committee surveys on the topic). Finally, a WISH-TV/Ball State Poll last December found 57.5 percent opposed.
Those numbers were based solely on an up and down vote on the marriage amendment. The Chesapeake Beach polling of legislative Republicans released in January revealed a classic dilemma. Long and Bosma would accentuate the fact that 80 percent of Hoosiers wanted to vote on the matter. But 54 percent opposed the second sentence concerning civil unions. And that was without a dime being spent against it.
Proponents of the marriage amendment openly fretted that they had to pass it this year, because the support might not be there in 2016. Essentially, proponents of the marriage amendment wanted this General Assembly to tie the hands of future assemblies on the question of whether to allow state-sanctioned civil unions and domestic partnerships.
State Rep. Dan Leonard, R-Huntington, framed it most aptly during a late January interview with Indiana Talks.com. “We have to put the right question on the ballot,” said Leonard. “Many of the people don’t believe it would pass in 2016. Why would we want to put it in the Constitution today in 2014 if it would not pass in 2016? We would be binding future generations to something they would not want to do.”
Ultimately, that was the most telling question. In best case scenarios, constitutional amendments pass with clear, resolute majorities, as the lottery did in 1988 with more than 60 percent supporting and tax caps did two decades later with 70 percent supporting.
This shift in public opinion resulted in a loss of support in the House and Senate floors. It went from 70 votes in 2011 to 57 votes this year in the House. In the Senate, support fell from 40 to 32. This is a reflection on how things are changing on the ground, well beyond Bloomington and Broad Ripple and into places like Attica, Hartford City, Mount Vernon and now the two super majority packed legislation chambers. Folks in small town and rural Indiana have, generally, more of a live/let live mentality. They are also for fairness.
These votes in the General Assembly came without big swells of national media money influencing the vote that almost certainly would have happened if it had been on the ballot this November. What happened in the House and Senate became an intimate conversation between senators, representatives and their constituents. And their constituents were reconsidering.
This is how the process should work.
Will HJR-3 pass the legislature and with voters in 2016?
Many, including Long, are not sure it will ever make it on the ballot. With federal judges overruling constitutional marriage amendments in Kentucky, Virginia, Ohio and New Mexico, the U.S. Supreme Court is likely to take up the issue once again between now and November 2016.
The 14th Amendment of the U.S. Constitution guarantees “equal protection” of all citizens in all states under the law. This will be at the crux of future debates either in the courtroom or on the ballot.