by Marilyn Odendah for theindianalawyers.com
Questions over how to fix the troublesome second sentence of Indiana’s increasingly controversial marriage amendment have sparked much speculation and led to one unexpected – and untested – solution.
Less than a week after the Indiana General Assembly began the 2014 session, the constitutional provision banning same-sex marriage was headed to the House of Representatives Judiciary Committee. As federal judges scrutinize similar bans in Utah and Ohio, the Indiana amendment appeared set to gain approval from both chambers before the end of January.
However, when legislators vote on the amendment, they could also be casting votes on an accompanying bill meant to explain the intent of the General Assembly. House Bill 1153, introduced by Rep. Eric Turner, R-Cicero, attempts to skirt concerns with the amendment by listing what the constitutional
ban would not restrict.
The measure drew immediate and strong reaction from the opposite side of the aisle.
Rep. Matt Pierce, D-Bloomington, described HB 1153 as a “catalogue of flaws in the amendment,†and questioned if the bill, should it become law, would have the effect the Republicans believe it will.
“They know the second sentence is fraught with all kinds of unintended consequences and they’re trying to explain them away without amending the proposed amendment,†Pierce said.
House of Representatives Speaker Brian Bosma, R-Indianapolis, maintained the bill answers the “valid questions†that have arisen from the proposed marriage amendment. Turner’s legislation, he said, addresses concerns over the potential impact on human rights ordinances while spelling out that domestic partner benefits, powers of attorney and other agreements people enter into will still be valid.
“I think it’s clear that regardless of what the Legislature does, even if it does nothing, there’s going to be a lawsuit filed here as there has been in 30-plus other states on these issues,†Bosma said. “So we felt it was quite appropriate to give the courts and voters, if it passes, and legislators some clarity on precisely what the language does and does not do.â€
Making a tweak
The process for amending the Indiana Constitution requires that a proposal be approved by two consecutive General Assemblies, then ratified by the electorate.
Over the past 10 years, amendments defining marriage as between one man and one woman have been filed in the Statehouse but were stalled in the Democrat-controlled House. The current proposed provision was first approved during the 2011 legislative session and must be green-lighted this session or the process to constitutionally ban same-sex marriage will have to start over.
Much of the focus on the amendment has been with the second sentence, which could be interpreted as banning heterosexual relationships. To fix this problem, the possibility has been raised of rewriting or dropping the sentence and still continuing with the ratification process.
Geoffrey Slaughter, partner at Taft Stettinius & Hollister LLP, is among those who believe an alteration would require a new beginning.
SlaughterHe pointed to the legislative process where a bill that undergoes even a minor change has to be reapproved by both the House and Senate. That procedure seems to set a precedent for starting over whenever a proposed amendment to the state constitution is altered, he said.
Neither Indiana caselaw nor legislative history provide a clear answer. In 1965, lawmakers did not start the amendment process over when, during the second presentation, it dropped language in a proposed change to Article 10 of the Indiana Constitution. Five years later, the General Assembly corrected scrivener errors in an overhaul of Article 7 that substantially changed the state’s judiciary. The amendment was subsequently challenged on several grounds in the Indiana Court of Appeals and Supreme Court, but the judges demurred on ruling whether the revisions were substantial enough to cause a restart.
In 1994, when the Legislature set about amending Article 16 which, ironically, details the steps for amending the state constitution, the process started over because a phrase was removed from the end of a sentence.
Former Senate President Pro Tem Robert Garton, R-Columbus, is considered the driving force behind getting that General Assembly to go back to the beginning. His insistence on following the rules was reinforced when, as a young state senator, he watched two Senate presidents get hauled away to jail.
Looking at the wording in the constitution, Garton asserted any change made to the same-sex marriage amendment would require the process start over. Specifically, the language of Article 16 says “the amendment†rather than “the revised amendment†or “the changed amendment,†which to Garton means no changes are allowed on second presentation.
“The constitution is not that difficult to read,†he said. “It’s rather plain language, ‘the amendment’ is ‘the amendment.’â€
Moving forwardÂ
Although HB 1153 is viewed as alleviating the need to rework the amendment, it may not insulate the proposed provision in the courtroom.
Pierce raised the question of whether the courts would even consider the interpretation provided by the bill when faced with a challenge to the same-sex ban. The Indiana Constitution is not subservient to the state statutes, he said, which makes it likely that the judiciary will look at the language of the amendment and make its own interpretation of the second sentence.
However, Bosma said HB 1153 keeps the process moving forward and enables the General Assembly, and possibly the public, to make the decision about what constitutes marriage.
“I think it’s right for the Legislature to make this decision and not a judge and that’s why I, personally, support the amendment,†he said. “If I thought it was disastrous for Indiana, we wouldn’t be doing it.â€
Jane Henegar, executive director of the American Civil Liberties Union of Indiana, disagreed, saying the amendment should not be put to popular vote. It limits individual rights that the Founding Fathers enshrined in the Bill of Rights to protect personal freedoms from harm.
HenegarHenegar said the Legislature should not try to be clever in fixing the amendment and instead should defeat it. The ACLU of Indiana is preparing if the constitutional provision does pass through the Statehouse.
“We’ll look at every option and try to refute (the amendment) in whatever form it may survive the Legislature,†Henegar said.
Shifting ground
Since the General Assembly approved this most recent version of the marriage amendment three years ago, public attitude toward the subject has shifted dramatically. Perceptions of same-sex couples have changed not only in the public square but also in the federal courts.
“What are we really doing this for,†asked Jon Laramore, partner at Faegre Baker Daniels LLP, “because the federal courts may trump the effort, at least in some respects.â€
LaramoreUnanswered is the question of whether states that ban same-sex marriage will have to recognize those marriages performed in states that do not prohibit that type of union. Indiana’s law against gay marriage and its potential constitutional ban would only be binding to state courts. The federal courts could apply federal law to rule that same-sex marriages performed in Iowa or Illinois are also valid in Indiana.
Even before Indiana’s amendment reaches the court, it may become a moot point. Voters will have final say on the provision if it appears on the 2014 ballot.
Garton’s experience with the same-sex marriage ban is telling. He voted for an amendment prohibiting marriage between individuals of the same gender but he was not upset when the measure failed to get through the House. The opinions from the opposition resonated with him, especially the arguments that characterized the ban as a civil rights issue.
He does not have a definite answer as to whether a ban should be enacted but his uncertainty reflects how opinions have turned around.
“I can’t say I’m comfortable with it,†Garton said of same-sex marriage. “The issue has changed, public attitude has changed. It’s a question if it should be in the Constitution.â€â€¢
it is pretty simple, and if th eamendment has been entered into the journals, then I don’t think it could be amended because the constitution says it is to be voted on by the next elected legislator.
It appears that the intention is if th epopulace is not happy with an amendment they could vote a change into the legeslator. So once again we see evidence that most Hoosiers want their constitutional right to vote on this amendment.
http://www.law.indiana.edu/uslawdocs/inconst/art-16.html
Indibama is going against the wishes of a lot of major employers in the state.
So now you’re for corporatism?
……
Here we go.
I-E, NOW you’re going to start advocating anti-business policies?
There is no legitimate difference between you and the Occupy Wall Street people. (Although they’re not likely Westboro Baptist style Christians…)
There you go again, more low wattage hate.
Seriously Weinz, I get it, you don’t like me. Big deal.
It’s a great question. I”m sure Eli Lilly is real encouraged by how this proposed bigot-law is inhibiting their efforts to recruit the best available talent.
This law is BAD for business folks…..but some of the bigots in here would rather burn the house down intent on frying themselves an egg. They’re more than happy to destroy the State’s business environment to protect their “proud to be ignorant” stance.
Twenty seven states have an amendment defining marriage as between one man and one woman. Are they all economic backwaters? Indiana by statute does not recognize marriages other than between on man an done woman, but our economy is strong. So what gives with that?
I don’t see why one’s sexuality should affect one’s value as an employee. But personally, I am getting a little tired of hearing that businesses we can’t thrive without homosexuals. What are we saying, that heterosexuals are second class citizens?
Let’s quit the drama and work for a solution that is good for everyone.
I-E. Now you’re changing the subject.
Is it the economy is strong?, OR Does bigotry and hate that denies Indiana same-sex couples their constitutionally guaranteed access to marriage law inhibit Indiana employers from attracting the best available talent? THIS is what Eli Lilly and other Indiana employers are observing.
“Good for everyone” means everyone has equal protection under the law. But you’re not interested in that I-E. And as you’re proving here, you’re not even pro-business anymore. You’ve descended into hate, bias and bigotry and have lost it.
The subject is does the State legislature want to prove to Indiana and the rest of the USA by putting forth an abominable amendment and prove to Indiana employers and ALL of the best available employment talent that Indiana is a bigoted State.
If this is low-watt business policy, you’re a fool.
How am I changing the subject when you brought up Eli-Lilly?
We have a constitution that gives us a right and process to amend it. What is being denied is that constitutional right.
I tried, but you just can’t engage in a reasonable discussion without resorting to your last refuge of a failed argument, insults. You can’t even come up with original digs.
Your hate and intimidation is no different than that of the old south bigot and Fred Phelps that you try to smear on me. Call me a fool, it means nothing from you.
…Too thin I-E.
Too thin.
You’re desperately trying to invert this that you are the hated here. It’s a lie.
You fail the duck test.
It’s beyond me how it is fine with you to discriminate against citizens, deny them their equal access to their constitutional rights, and totally lack any compassion that a person’s private life is their own to be lived in peace.
This is calling it what it is. It’s pure bigotry.
You don’t like that? Stop being a bigot towards your fellow citizens.
I’m for equal rights for all not special rights for homosexuals.
I have never said anyone is going to hell for anything other than falling short of God’s glory which all of us fall short of.
I have clearly and reasonably posted my views without resorting to my religious convictions or demeaning anyone.
Your the one marching around on forums carrying signs like a Westboro baptist roll judging anyone who does not bow to your views.
You have demeaned my faith, character, and even my job when you don’t even know what I do. You offer nothing and have no use or interest in your low wattage hate.
I tried to have a reasonable exchange with you, but you returned to the same vomit you always spew on my screen. I don’t need your low wattage hate.
I have challenged you before to put one thing I have ever said that was bigoted toward anyone.
You can’t do it because all I have is a different opinion on to whom the state must issue a marriage license.
Come on Weinz, tell me where I have ever said anything close to what Fred Phelps and Westboro Baptists say. In fact, have I not shown you where I condemned what they say and do?
Here’s a challenge for you, put @hotmail.com on the end of my name and email me. I’ll tell you where I minister on Sunday mornings and you can come hear just what a bigot I am. Up to it, or is it just easier for you to yell bigot?
You….KNOW…..this ban on same-sex marriage is wrong. It is a violation of personal rights and personal civil liberties, hallmarks of your sense of simple everyday justice, and any justification saying it hurts others is based on sliding sand.
I’m certain of it. Some part of you appears to be hard-wired to be against it, part of a cultural past and pride most likely. But spiritually, intellectually and legally…you know it’s wrong. This change is part of the good news. The old law is in the past.
Wonder what Wayne Parke thinks about this issue?
Tires, Who cares?, From what I’ve observed from afar. If brains were gas he couldn’t produce enough of a fart to quaver a nano hair on fleas butt.
I would also wager the sensible weight,of his subjective conjecture,wouldn’t have,as well.
[conclusions:)
> Functionality Failure per conditional weight per current methodology,as required,per procedures due of standards.
[discrepancies]
> Does not meet specifications/per title classification.
> Non effective balance,or sustainability forward,on the design medium(mean)center,due current issues of importance or contents,thereof.
[Action required;]
> Improve standard (mean) weight to measure per solution applied,per issue,per timing “when” required or requested.
That amendment is fatally flawed. Poorly conceived and badly written simply to pander to the bigots. It will have to be rewritten and we’ll have to start all over. Maybe the courts will make it clear in the interim what a non-productive waste of time and state tax money that would be.
Bandana:
“pro di immortales.tetigisti acu”
good heavens.you have hit the nail on the head.
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