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February 12, 2014

Legal landscape rapidly changing on gay marriage bans

Law professor predicts quick court challenge if Indiana's ban passes.

INDIANAPOLIS — Supporters of the marriage amendment say it’s needed to protect Indiana’s current ban on same-sex unions from being overturned by “activist” judges. But as debate moves forward in the Statehouse, the issue appears more and more likely to end up in the courts.

“I’ve been teaching constitutional law for 30 years, and never in my experience have I seen a situation shift so rapidly,” said Indiana University law professor Daniel Conkle. “The legal opinions involving state laws and amendments are shifting as almost rapidly as public opinion on same-sex marriage is. As a result, we have a remarkable rapidly shifting legal landscape.”

Should the state Senate pass House Joint Resolution 3 with language restored to ban both gay marriage and civil unions, the proposed amendment to the state Constitution may head to voters as soon as November. If it passes the public vote, Conkle predicts a quick court challenge.

“It’s inevitable,” Conkle said. “Shortly after the election, you’d see a lawsuit.”

States’ attempts to define marriage to exclude same-sex couples are fast facing legal challenges triggered by last summer’s U.S. Supreme Court decision striking down a key part of the federal Defense of Marriage Act.

The ruling was cited by federal judges overturning bans in Utah and Oklahoma. Those decisions are now on appeal.

Challenges are pending on bans in Michigan, Virginia, and Florida where advocates argue that laws prohibiting gay marriage violate the U.S. Constitution’s guarantee of due process and equal protection under the law.

And in early February, the American Civil Liberties Union sued to challenge a constitutional amendment approved by Wisconsin voters in 2006, which is similar to the original version of Indiana’s measure. Both ban gay marriage and civil unions.

“I think the issue is headed back to the U.S. Supreme Court,” said Conkle, adding that the nation’s high court could take up challenges to state bans by early next year, depending upon how fast federal appeals courts move.

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