There appears to be some confusion over a companion bill to the proposed constitutional amendment that would further define marriage in Indiana.
When the amendment was officially introduced in the General Assembly on Thursday, introduced alongside it was House Bill 1153. That bill seems to be designed with critics of the marriage amendment, now known as HJR-3, in mind. While the marriage amendment limits marriage to heterosexual couples and also appears to outlaw same-sex civil unions, the companion bill states that the amendment is not intended to get around any local discrimination laws or prevent employers from offering benefits to same-sex partners of employees.
David Orentlicher, professor at the McKinney School of Law at IU, isn‘t sure whether companion bills to constitutional amendments have been introduced in the past, but he says one reason for it is supporters‘ efforts to hold a referendum this November. “If they added language to the marriage amendment, it would restart the clock on the amendment. You have to go through two separate sessions of the legislature before it can go to the electorate.”
Another reason supporters may be using a companion bill is that, unlike Congress and some other states, the Indiana legislature does not record legislative history. “So, when courts are looking at ‘what does this constitutional amendment mean‘, they have to rely largely on the language of the statute. This is an attempt to create an official record,” Orentlicher said.
Another constitutional law expert predicts a long fight in court over the amendment if the companion bill is passed. “The constitutional amendment includes the following sentence: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” The companion bill suggests that language isn‘t as broad as it sounds, and lists things “not prohibited or restricted,” said Joel Schumm, clinical professor of law at the McKinney School.
If a referendum does take place, Schumm also doesn‘t know if it is legal to provide voters will only the language from the constitutional amendment and not the language of HB 1153. ” I think the companion bill raises more questions and confusion than answers or clarification.”