Law and Marriage: a Case Study

Indiana is sometimes called the “buckle on the bible belt;” we are a socially conservative state. Nevertheless, while so many states have amended their constitutions to include prohibitions on same-sex marriage, Indiana has managed to beat back similar efforts. The natural question is: how? What is it about the legislative process and/or the strategies employed by the LGBT community that have allowed Indiana—at least, thus far—to duck the bullet of a constitutional amendment?

 Undoubtedly, the most important ally of the pro-equality forces has been the Indiana Constitution itself. The Indiana Constitution isn’t easy to change—in order to get an amendment on the ballot, both houses of the legislature must pass an identical measure in two successive sessions. That buys opponents some very valuable time, and places a procedural roadblock to any hasty or ill-considered measure.

So our Constitution has helped. It also helped that the Indiana LGBT community joined forces to fight the amendment.

Indiana’s gay community is not much different from communities elsewhere—there are multiple factions, organizations, bloggers, malcontents—you name it. (In fact, the gay community today reminds me of something my mother used to say about the Jewish community when I was growing up: that there are three organizations for every living Jew, and the only thing two Jews can agree on is how much the third should contribute.)

Nevertheless, despite the factions, the strategic disagreements and the inevitable backbiting, the major gay organizations in this state were able to come together to form and support Indiana Equality, an umbrella organization that facilitated the forging of a single, focused strategy. You can assess the importance of that by looking at states where strategy squabbles between and among gay organizations really hurt efforts to promote equality.

That strategy included some of the obvious things: forging coalitions with other progressive groups, and working in informal partnerships with the lobbyists for those organizations, for example. It also included some less-obvious aspects, including a cogent political argument to Democratic legislators: Did they really want a “hot-button” anti-gay measure on the ballot when they were running for re-election? Accurate or not, there is a perception that in 2004, GW Bush was able to get out the Republican vote in a number of crucial states because measures against same-sex marriage were on the ballot. Democrats in Indiana almost certainly would be damaged if there were a similar measure on Indiana’s ballot, and they’d be hurt whether or not they had personally voted for it. That is because such a measure would be highly likely to bring out straight-party Republican voters who otherwise might not show up at the polls. I think there is evidence that a number of Democrats who might not otherwise have been supportive took that warning very seriously. 

Probably the two most important strategies pursued by Indiana Equality, however, were the decisions to reframe the debate and to aggressively court the business community.

By reframing the debate, I refer to the decision to emphasize the effects the language of the proposed amendment would have on all Indiana marriages. While accurate, this line of argument was also intended to give legislators an excuse for opposing the amendment that didn’t require them to take the moral high ground. They could say, basically, “I’m with you, fellow homophobes, but I’m worried about how this language might affect us ‘normal’ folks.”

Finally, and perhaps most importantly, the community was able to get testimony opposing the measure from some of the state’s largest employers. In a very real way, the ability to enlist such high-profile allies is a sign of widespread cultural change, not entirely a testament to Indiana Equality’s persuasive powers. But IE’s lobbyists were able to obtain strong public statements from employers like Eli Lilly, Cummins Engine, Emmis Communications and others, who took the position that passage of the amendment would hurt their recruiting and interfere with their benefits policies. Here were pillars of the community—mainline, mainstream, sober business interests— implicitly saying that efforts to amend the state constitution to prohibit same-sex marriage are attributable to the political fringe. Their testimony helped IE marginalize proponents of the amendment and frame them as intolerant extremists so intent upon keeping gays second-class citizens that they didn’t care what damage they did to Indiana businesses or  heterosexual couples in the process.

Now, all of this could change; the marriage amendment people certainly haven’t given up. They tried again this year, and they’ll keep coming back—at least for the next few sessions. But Indiana Equality began this fight with an overarching goal: to “kick the can” down the road until the accelerating pace of change to the broader culture makes the issue irrelevant.

So far, that’s worked.


  1. Yeah, the strategy has “worked” but barely. Ultimately, it’s a failed strategy because it pits IE against the rest of the LGBT community in the state and the nation. IE is one of the few, if not the only, statewide LGBT organization that doesn’t support full marriage equality. Most people don’t realize this – they assume that IE is pro-marriage. At some point, this will bite IE in the backside.

    Kicking the can down the road has also set us back in moving our agenda forward in any real way. Your history of IE is a little off – they were originally formed exclusively to advocate for a statewide employment, housing and public accommodations non-discrimination law. So far, they haven’t even gotten that bill introduced, let alone enacted.

    Up until about 3 years ago, IE’s website promised that bill would have already been introduced in the legislature. Because of this “middle of the road” policy, IE has a hard time advocating for pro-LGBT legislation.

    The tactics you describe (pointing out the effect on non-LGBT people, gathering support from the pro-equality businesses, heartfelt testimony) are all great and should be part of any strategy in defeating a marriage amendment…But that doesn’t mean that the overall strategy is sound or will continue to be viable.

    You also failed to point out the political realities of putting this amendment on the ballot. Democrat speaker of the House Pat Bauer is a shrewd and brilliant politician. He knows that if this amendment makes it to the ballot, the Democrats will have a bad year statewide.

    THAT, more than anything else, is what’s keeping this amendment from seeing light of day. Yes, the tactics of IE give Bauer the cover he needs to stand strong in that position, but don’t fool yourself or your readers into believing that IE is the real reason this amendment has died.

    Pat Bauer deserves the lion’s share of the credit and you do him and the movement for LGBT equality a disservice by implying anything different.

  2. Jerame, I understand that you and Bil remain angry at Indiana Equality. And you are certainly entitled to your opinion. While Pat Bauer deserves credit for understanding the implications, I think your dismissal and mischaracterization of IE is unwarranted.

  3. Sheila, dragging Bil into this is just a cheap shot to attempt to discredit my comment. I am not angry at IE – I’m angry at your friend, Mark St. John. There are good people at IE and they’ve been misled and misdirected by Mark. Your constant cheerleading is rather transparent and doesn’t help your credibility in this matter in the least.

    You’re so dismissive of any criticism of IE, but the truth is that they have some serious issues that don’t get addressed. You listen to only one side of the story because you are friends with Mark. You have always taken his side regardless if he’s right or wrong – that makes you part of the problem, not part of the solution.

    You really don’t know the whole story and you don’t take the time or effort to find out, but you go about blasting everyone who’s a critic. The criticism exists for a reason. I served on that board for 3 years – I think I have every right and reason to say what I say about IE’s policies, mistakes and failures.

    Again, I’d encourage you to find a source other than Mark for your news and info on LGBT issues. You could, as a straight ally, do a lot of good for LGBT equality if you weren’t just cheerleading for IE and dismissing their critics without thought.

  4. As an up-close observer of the process, credit has to go to both Speaker Bauer and Mark St. John. Mark is tireless in his efforts for equality and Speaker Bauer is courageous enough to stand up and take the bullets for his caucus, as well as some open-minded Republicans who don’t want the amendment to see the light of day, but are unwilling to stand up to the base of the party.

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