Marriage amendment invites confusion, unintended consequences: IU Maurer School of Law experts

Jan. 14, 2014


BLOOMINGTON, Ind. -- A proposed amendment to the Indiana Constitution currently before the House Judiciary Committee invites confusion and unintended consequences, according to experts at the Indiana University Maurer School of Law. The proposed amendment is House Joint Resolution 3.

"HJR 3 probably would do nothing more than delay the adoption of same-sex marriage in Indiana," said Daniel O. Conkle, Robert H. McKinney Professor of Law. "Even if the Indiana Constitution is amended, the new provision would likely face a federal-court challenge under the 14th Amendment to the U.S. Constitution. Recent developments nationwide -- not only in the U.S. Supreme Court but in courts and legislatures across the country -- suggest that the 14th Amendment may soon be understood to protect a constitutional right to same-sex marriage. In fact, as a matter of federal constitutional law, state constitutional amendments sometimes are subjected to greater scrutiny than state statutes, so HJR 3 might even be counterproductive to the cause of preserving traditional marriage."

Dawn Johnsen, Walter W. Foskett Professor of Law, agreed. "In striking down the federal Defense of Marriage Act last year in United States v. Windsor, the Supreme Court signaled that state laws like HJR 3 are unconstitutional," she said. "To be sure, the court did not resolve the constitutionality of HJR 3, but the court's reasoning suggests that in a future case it would hold unconstitutional state laws that discriminate on the basis of sexual orientation with regard to who may marry.

"In light of recent changes, including the court's Windsor ruling and other evidence of our nation's constitutional understandings, for the Indiana legislature to pass HJR 3 would be an affront to human dignity and equality in violation of our constitutional guarantees, a terrible waste of our state's resources and a damaging embarrassment for our state," Johnsen said.

Associate professor Deborah Widiss added, "HJR 3 is unnecessary -- we already have a statute that prohibits same-sex marriage -- but the second sentence could have unintended consequences, such as limiting the ability of employers to provide health benefits to same-sex partners of their employees. And the proposed 'companion statute' does not alleviate this concern, because it cannot trump the language of the proposed amendment. In fact, enacting HJR 3 would only invite new legal challenges, almost guaranteeing that the issue will go to the courts. In addition, the state’s refusal to recognize same-sex marriages continues to deny Hoosier couples key protections under both federal and state law."

Associate professor Steve Sanders added, "In addition to its impact on gays and lesbians who want to get married, HJR 3 apparently also would nullify the existing marriages of same-sex couples who procured legal marriages in good faith from other states. Indiana's refusing to give legal effect to an existing, valid marriage is arguably even more constitutionally problematic than denying the right to marry in the first instance."

These experts are available to comment on HJR 3 and other issues relating to same-sex marriage. Their recent research on same sex-marriage will be published in a forthcoming Indiana Law Journal symposium. Conkle can be reached at or 812-855-4331; Johnsen at or 812-855-3942; Widiss at or 812-856-1435; and Sanders at or 812-855-1775.