Although the ABA itself endorsed marriage equality for gays and lesbians over three years ago, the Indiana Bar Association has failed to follow in the national organization’s footsteps. Given that the state appears poised to entrust the fate of gays’ and lesbians’ equal protection rights to the will of the plebiscite, the bar’s continued silence is indefensible.
It is important to remember that Indiana law currently does not permit gays and lesbians to marry, so taking a stand against the Amendment will not obligate the members of the bar to explicitly support gay marriage. Instead, one key reason why the state bar should oppose HJR6 is that the referendum will alter the state constitution to specifically condemn homosexuals to a form of second class citizenship. Our state constitution is a sacred covenant between our state government and the citizens of the state – one that proscribes the government’s ability to interfere with individual liberties. It is document that should bind us together rather than find ways to separate Hoosiers based on our personal opinions on divisive social issues.
When I moved from Madison, Wisconsin five years ago to Indiana, I moved from a community that had been represented in Congress by an openly gay lesbian to one of Indianapolis’ northern suburbs. In my early weeks here, while sitting in a coffee shop with a female friend, I was the butt of a homophobic slur. While I don’t pretend that Madison was paradise, the slur was an early sign that I had moved into a community with a different cultural climate. I have since found reasons to enjoy living here, but should this Amendment pass, I will actively pursue out of state employment opportunities. While the economic downturn may not immediately permit large numbers of gays and lesbians to leave the state, in the long run, gays and lesbians with a choice of opportunities will undoubtedly avoid staying in or moving to what is perceived as hostile territory.
While some may argue that the bar should stay out of politics, when political issues threaten to impair the state of justice in Indiana, the bar cannot remain silent. Despite the fact that the profession is often the subject of parody, as members of the profession, attorneys “are officers of the legal system and public citizens who possess special responsibilities for the quality of justice.” (Indiana Rules of Professional Conduct Preamble) By standing on the sidelines and hoping that the legislature will abandon this issue, the bar’s silence is a mark, not of courage and justice, but of cowardice.
Shawn Marie Boyne
Professor of Law
Indiana University Robert H. McKinney School of Law