The battle for marriage equality in Indiana has been re-ignited, following the U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act forbidding married, same-sex couples from partaking in many of the same legal benefits as opposite-sex married couples.Our Highland family law attorneys know that while homosexual marriage is neither permissible or legally recognized in Indiana, per a previous ban in the form of HJR6 (which limits the definition of marriage in the state to one man and one woman), conservative lawmakers are preparing to introduce legislation that would write the ban into the state’s constitution. In layman’s terms, voter approval of a state constitutional ban would make same sex marriages in Indiana “extra-illegal.” Essentially, the measure would be tougher to repeal if voters or lawmakers ever so chose.
In the U.S. v. Windsor decision, the question was whether the Defense of Marriage Act, also frequently referred to as DOMA, which had defined marriage for all purposes under federal law as one man and one woman, was unlawful due to deprivation of equal protection for same-sex couples who were legally married in their state. The court ruled ultimately that, yes, DOMA violated the Fifth Amendment rights of these individuals.
However, that ruling didn’t mean that gay marriage automatically became legal in all 50 states. What it meant was that couples who are legally married can’t be denied federal benefits.
Where it becomes slightly more complicated in states like Indiana is when homosexual couples are legally married in other states and then move to Indiana. They may now be able to collect federal benefits, but the state still will not recognize their union.
The same is true with regard to family issues. As of right now, because the unions of same-sex couples aren’t recognized by the state, neither will the state grant divorce proceedings between these pairs.
There are some states that bar same-sex marriage recognition – except for the limited purposes of ending the union, although as of today, Indiana isn’t one of those states. As such, many divorcing homosexual couples have been forced to move back to the state where they married (or another that recognizes their union) in order to obtain the residency requirements necessary to obtain a legal divorce. It’s unclear whether they will need to continue to do this in light of the DOMA ruling.
It’s worth noting that child adoption by a single person who is LGBT is allowable in the state and joint gay adoption isn’t expressly prohibited. In some areas, we have seen that second-parent adoption has been allowed.
When issues of contention arise in these arenas, they may still be fought in state court.
National public opinion on the issue has shifted dramatically, even in the last decade, with 58 percent of the country now in favor of legalizing same-sex marriage. In December, a poll conducted in Indiana by the Bowen Center for Public Affairs found that while the majority of voters did not want the state’s same-sex marriage ban written into the state constitution, they were about evenly split on the issue of whether gay marriage should be legal in the state.
Marriage equality advocates have vowed a vigorous fight against having the current law engraved into the state constitution, and have further promised ongoing efforts to have the current law struck down.