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Deborah Widiss
IU Maurer School of Law

Ken Turchi
IU Maurer School of Law

Last modified: Wednesday, March 16, 2011

Amendment barring same-sex marriage unnecessary and vague, IU legal expert tells Senate panel

March 16, 2011

BLOOMINGTON, Ind. -- In testimony today before the Indiana Senate Judiciary Committee, an Indiana University Maurer School of Law expert on marriage equality spoke against the adoption of a joint resolution that would amend the Indiana Constitution to ban same-sex marriage.

"Even those of you who are firmly opposed to same-sex marriage should not vote for this amendment," Professor Deborah Widiss told the committee. "Indiana law already prohibits same-sex marriage, and the proposed amendment is vague and could lead to unintended and unfortunate consequences."

Deborah Widiss

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Widiss explained that the current marriage statute is sufficient because it clearly provides that marriage in Indiana is between a man and a woman, and that a marriage between two individuals of the same sex is void in Indiana even if it is lawful in the place where it is solemnized.

"Even if a lesbian or gay couple is lawfully married in Iowa or Massachusetts, if they move to Indiana, their marriage is void," she explained. She added that Indiana courts have determined that the statute is constitutional. Although other states' courts have struck down similar statutes, the Indiana constitution is unusually deferential to legislative enactments, so she explained that there was no reason to think that Indiana's statute was vulnerable to being overturned by the judiciary.

In addition, Widiss pointed out that if the citizens of Indiana are asked to vote on an amendment to its Constitution, the amendment should clearly state the possible consequences. "As currently drafted, the resolution fails to meet this standard," she said. "In fact, it is so ambiguous that it is impossible to know how courts would apply it, and therefore it may well have unintended consequences."

She was particularly concerned with the ambiguity of the second sentence of the resolution, which would provide that a "legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."

"Some people will have no idea what this means at all," she said. "Others will probably assume that this would only prohibit the state from creating civil unions. But in fact, the amendment would likely prohibit far more than civil unions." She noted that it could jeopardize the right of public employers, and potentially private employers, to provide health care benefits for registered domestic partners.

Widiss explained that if any of these provisions, or a combination of these provisions, were deemed to create a legal status "substantially similar" to marriage, the constitutional amendment would require courts to strike them down. "Constitutional language simply trumps all other laws," she said.

"There are various factors that need to be balanced in considering legislation in any of these areas," she told the committee. "But you, and future members of the Indiana legislature, should have flexibility to craft statutes to meet these needs -- and to adapt, correct or repeal statutes if they have unintended and undesirable consequences."

Widiss is an associate professor at the IU Maurer School of Law. She is available to comment on issues relating to her testimony before the Senate and on other issues relating to same-sex marriage. She can be reached at, or at 812-856-1435.