Bars discussing marriage amendment, but cautious about taking a stance

Among the nearly 13,000 members of the Indiana State Bar Association, views on the proposed marriage amendment are falling into three separate camps: those who think the association should publicly support it, those who think the association should publicly oppose it and those who think the association should refrain from taking a position at all.

The specter of a bar association taking a public stance on such a charged political issue was increased Monday when the Indianapolis Bar Association announced its opposition to the proposed amendment banning same-sex marriage.

Following a survey of its members and internal discussions, the Indy Bar took a position against the amendment, HJR 3 and the companion legislation, House Bill 1153.

Whether any other bar association in Indiana will make a public statement on the amendment is unknown. However, a sampling of some associations around the state found a reluctance to speak out on social issues such as this.

“There are significant issues that this raises – political, religious, economic and public policy issues in addition to legal issues,” state bar president Jim Dimos said of the marriage amendment. “It’s hard to strike the right balance for representing and serving all the members of the association.”

The state bar has not turned a blind eye to the matter. Last year, two existing committees examined the amendment. One committee reached the conclusion that the association should oppose the measure while the other committee advocated against the bar taking any stance.

Instead of submitting competing resolutions during the October 2013 House of Delegates meeting, both committees decided to withdraw their respective proposals.

Since then, the ISBA has appointed a special committee, chaired by Indiana University Robert H. McKinney School of Law professor Joel Schumm, which is tasked with monitoring HJR 3 as it moves through the Statehouse this session.

“Much like the fact that the Indianapolis Chamber of Commerce took a position on HJR 3 while the Indiana Chamber of Commerce did not, the IBA and the ISBA have different constituencies and both organizations need to serve their members as the respective boards see fit,” Dimos said.

The state bar president added he has a “tremendous amount of respect” for the Indy Bar and he is sure the board of managers gave the matter considerable thought and reached the decision that it believes was in the best interests of the membership.

Since the Indianapolis Bar made its announcement, Scott Wylie, president of the Evansville Bar Association, has received some phone calls from local attorneys, asking if the association was going to take a position.

Like the state bar committees, Wylie said EBA members have expressed two primary views: vigorously oppose the amendment or do not to get involved.

Among those opposed to the amendment, he has been hearing a nuanced position. Some members are against the proposal because they have doubts about enshrining legislation into the state constitution. They see putting a ban on same-sex marriage in the constitution as similar to moving punishment for a gun crime or methamphetamine offense into the state’s founding document.  

Traditionally, Wylie said, the Evansville bar does not get involved in political issues. He compared the association’s level of discretion on highly political matters to that of a family who chooses not to discuss certain topics over Thanksgiving dinner.
 
Given the very collegial nature of the association, Wylie emphasized he wants to be cautious and thoughtful. Before taking any position as an association, he said, as the bar president he would want to engage the members, perhaps through a survey like the Indy Bar conducted, to get their feelings and views.  

“I applaud the Indianapolis Bar, as a membership organization, for investing the resources they invested to engage their members,” Wylie said.

The EBA plans to discuss the marriage amendment at its monthly meeting Feb. 13. Also, the family law section has been asked to examine the amendment to determine how the proposal would potentially impact certain statutes.

Social issues are something the Allen County Bar Association also has traditionally not taken positions on, according to the bar’s president, Allen Superior Court Judge David Avery.

“To keep the collegiality in the bar, you just don’t need issues like that that bring out the difference in the individuals,” he said.

The Allen County bar’s board of directors has not been discussing the marriage issue nor have any members pushed the association to take a stance, Avery said.

“Personally, I don’t see it as the bar’s place,” Avery said. He noted he was speaking about the Allen County bar and did not have a problem with other bar associations taking a position on the amendment.