Tuesday, January 28, 2014

HJR3 Marriage Amendment to the Indiana Constitution would have encouraged more Domestic Violence had it not been amended in a 52-43 vote

28 January 2014

Here is the complete text of the proposed Article 38 to the Indiana Constitution;
Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The first sentence is already in Indiana Code § 31-11-1-1(a)
“Only a female may marry a male. Only a male may marry a female.” The second sentence (b) goes on to prohibit same gender marriages;
“A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” This law was passed in 1997.

While I hold no position as to who may join themselves in an intimate relationship other than two consenting adults I oppose the passage of HJR3 on two basic principles. The first is it would deprive voters of the opportunity to decide these matters which I wrote about previously. The second reason, which I find more compelling, is that it could deny to children the right of access to both parents and it could deprive certain classes of people from receiving further protections or services related to Domestic Violence.

The HJR3 Second Sentence reads “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” This is a very broad sentence. “Legal status” refers to recognition by the government of a state of being and cuts across a wide swath of interactions from marriage to disability or – as I am going through a battle with Indiana University – whether I am a resident of the State of Indiana.

Child Custody
I will address the child custody matter first which is at the core of my professional activities -- child custody. Currently, Indiana law forbids people of the same gender to marry and be recognized as such by the State. This prohibition prevents the partner of a biological or legal parent from becoming an adoptive parent to the child. Thus, the female partner of a woman, while fully intending to be a second parent to the unborn child her partner carries, cannot become an adoptive parent of the child. A man not the biological father may. This is common in subsequent marriages and is known as a step-parent adoption. On this topic Indiana Supreme Court Chief Justice Brent Dickson correctly articulated;
“Indiana adoption law expressly addresses stepparent adoptions, permitting them if 'the adoptive parent of a child is married to a biological parent of the child.'[fn1] In all other cases, an adoption operates to divest the child’s parents of all rights with respect to the child. In addition, same-sex marriages are prohibited in Indiana. Even if King and [Benham] had not separated but were continuing to live together as same-sex domestic partners, it is my view that King could not lawfully adopt A.B. because stepparent adoptions require the adoptive parent to be married to the child’s parent, and same-sex marriages are not permitted. If a stepparent adoption is contrary to statute for same-sex domestic partners living together, it is likewise illegal after the termination of the couple’s relationship.”[fn2]

In such a case of same-sex parenting the biological or legal parent could summarily terminate the adult-adult relationship and also terminate the parent-child child relationship involving the partner and the child of the biological or legal parent. Thus, a child who has known a “parent” since birth could be summarily discharged from that person's life with no legal recourse. This is in clear opposition to public policy. The Preamble to the 2013 Indiana Parenting Time Guidelines begins;
The Indiana Parenting Time Guidelines are based on the premise that it is usually in a child's best interest to have frequent, meaningful and continuing contact with each parent. It is assumed that both parents nurture their child in important ways, significant to the development and well being of the child.
It could be a traumatic event with long lasting psychological implications for a child to have to go through this. As reproductive technologies allow, society becomes more accepting, and costs decrease we are going to see more same-sex parenting arrangements. Consequently, as with any partnerships be it traditional marriage or business relationships there are going to be dissolution actions. Some will not be amicable and some of these partners will do the despicable act of using the child as a tool of retribution. Children will need to be legally protected from this as currently exist in marriages, adoptions and paternity cases.

Domestic Violence
The second part of my argument against the Second Sentence is also germane to my activities as I am currently advising on a Domestic Battery cases in a criminal court. The Second Sentence could deprive victims of Domestic Violence from receiving support or having the legal status of a victim. “A legal status . . . substantially similar to that of marriage for unmarried individuals” could be surmised from intimate partnerships. Persons who qualify as victims of Domestic Violence include;
An individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person;
If the Second Sentence of HJR3 had been adopted then defense attorneys in Domestic Violence cases involving same-gender intimate partners would be arguing constitutionally that the law may not be applied to their same-sex clients. (1) is not applicable because same-gender partners may not marry in Indiana. (2) is not applicable because “living as a spouse” is “substantially similar” to marriage. (3) is not applicable because the same-gender partner has no legal status related to the child as Chief Justice Dickson explained. Whereby the language of HJR3 as introduced would have prohibited prosecution of violent abusers in same-gender relationships. It would have also prohibited the victims from receiving services through victims advocates as the would be constitutionally barred from being granted a victim status and all shelters or other services providers would have had to deny services to these victims if the provider received any State support – as nearly all do through grants. Essentially, HJR3 as introduced was a green flag to same-sex abusers to be violent against their partners.

No one should advocate for encouraging violent relationships regardless of gender but that is what supporters of HJR3, whether through intent or ignorance, have done.

Next time you are given the opportunity to support a public referendum on a matter of law ask yourself if you knew that sending HJR3 as originally written to public referendum would have prohibited prosecutions of same gender offenders under Domestic Violence laws.

[fn1] Ind. Code § 31-19-15-2(a)
[fn2] King v. S.B., 837 N.E.2d 965 (Ind. 2005)
[fn3] Ind. Code § 35-42-2-1.3 version b

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