Indiana Senate An Embarrassment To Our State

The Indiana Senate took up consideration of a second reading amendment to SJR-7 offered by Sen. John Broden (D-South Bend), which would have removed the surplus language in the second paragraph of the amendment many believe will have the effect of striking down domestic partner benefit arrangements at public universities and other public entities, endanger existing domestic violence laws and forever outlaw the recognition of civil unions in Indiana. Despite the considered and logical reasons offered by several senators in support of the amendment to SJR-7, the Senate's sentiment was captured by Sen. Brent Steele (R-Bedford), who offered little more than this: if you dare to change one word in this amendment, it will reset the time clock. And with that, the Senate quickly voted down the amendment by a voice vote. No recorded vote to confirm the extent of the hate and bigotry on display against Indiana's gay and lesbian citizens.

With all due respect, Sen. Broden turned to Sen. Steele prior to the voice vote and reminded him this wasn't a game with a stop clock or a 2-minute warning. And his point was right. Our founding fathers intentionally made the process of amending the constitution somewhat cumbersome because it required a lot of thought and consideration, particularly when people's rights are at stake. Sen. Broden's amendment preserved the same language that is contained in Indiana's DOMA law, which defines marriage as a union between one man and one woman. Broden noted the state statute works. No same-sex marriages have been legally recognized in Indiana more than a decade after DOMA's enactment. An Indiana Court of Appeals decision specifically upheld DOMA and determined Indiana's equal protection clause does not require recognition of same-sex marriages. So why the need for the second paragraph of the amendment?

Sen. Brent Hershman (R-Wheatfield), the principal author of SJR-7, offered no other excuse for including the second paragraph than it was drafted by a fine constitutional scholar, Professor Bradley at Notre Dame Law School, and supported by other legal scholars, including Notre Dame law professor Charles Rice, Jim Bopp and Eric Miller. I wouldn't confuse Miller with the other legal scholars mentioned, but as Sen. Broden pointed out, all of those individuals approached constitutional law with a very narrow view not accepted by most legal scholars. He could have just as easily pointed out that these same individuals disagreed with the U.S. Supreme Court's decision in Lawrence v. Texas striking down gay sodomy laws. This distinguished group of men actually believe our constitution permits the government to enforce laws preventing two consenting members of the same sex from having sexual relations in the privacy of their own home.

A critical point Broden made in support of his amendment to SJR-7 was the decision handed down by the Michigan Court of Appeals just last week holding that a similar Michigan constitutional amendment banning same-sex marriages also invalidated domestic partner benefits offered by the state's public universities and other public bodies. The Michigan court found the prohibiting language "or other civil unions" included any legal incidents of marriage, including domestic partner benefits. Interestingly, the language Broden seeks to strike from SJR-7 specifically prohibits an interpretation of Indiana constitutional or statutory law to legally recognize any "incidents of marriage" to "unmarried couples or groups." While Hershman cites interpretations offered by his select legal scholars that the language in SJR-7 would not produce a result such as reached in Michigan, Broden reminded lawmakers that legal scholars with a similar constitutional perspective said the same thing about the Michigan amendment before it was adopted. Broden hinted that he believes these legal scholars Hershman relies upon understand exactly what the second paragraph does and know it will accomplish more than just ban same-sex marriages in Indiana.

Perhaps one of the most moving speeches I've heard coming from any member of the legislature were the words spoken by Sen. Anita Bowser (D-Michigan City), who is herself a respected constitutional scholar. "I see a gross violation and potential for a whole lot of mischief [with this proposed constitutional amendment]", she told her colleagues. "I have never seen an issue that deteriorates our beautiful document." "I don't want it soiled," she implored of her colleagues. She said it hurt her that "we lightly ignore" constitutional principles represented by equal protection, due process and the First Amendment. She urged her members not to compromise "your integrity with a cheap, partisan expediency."

It's nothing more than a wedge issue Bowser explained. She rhetorically asked her colleagues how the mere threat of gay marriages had caused one out four children to be born out-of-wedlock, 51% of women in America to live without spouses and higher divorce rates. She asked how her colleagues could stand by and inflict "great harm to citizens who through not fault of their own are born with this particular phenomenon"--one she noted is increasingly recognized as naturally-occurring. Bowser was too polite to ask how gay marriage caused Sen. Hershman to demand his wife of more than 7 years get an abortion when she became pregnant a decade ago and then seek a divorce from her a week after she complied with his wishes.

Bowser attempted to explain to her colleagues that the constitution is a document which gives us rights, "it doesn't talk about intolerance." "Who next is going to be on your hatred list," she asked. "Immigrants." Expressing her great disappointment with the failure of leaders of our public universities to step forward and stand up for the rights of their employees who will be harmed by SJR-7, she pleaded for them to come forward. "What are we doing to our educational system [with this amendment]," she asked. "It's a piece of trash," she told her colleagues before concluding her remarks.

It is extremely disappointing that not one single lawyer-legislator attempted a defend the second paragraph of SJR-7. Sen. Brent Steele, a cheerleader for the Christian right, merely resorted to cheap political arguments. His only argument against giving credence to the Michigan court ruling was that it came from a state other than Indiana. He told lawmakers he looked pretty weak in court if the only case he could argue was a case issued by a court from another state interpreting that state's law. Sen. Steele should know that in any case of first impression courts always look to the decisions of other jurisdictions on the same issue as part of its analysis. If you look at every major court ruling over the last several years having anything to do with the same-sex marriage debate, you will find courts of one state citing rulings of another state to support or distinguish their own ruling. It is really frightening to see just how lightly a lawyer-legislator like Sen. Steele takes on his constitutional power to amend our state's constitution. It's even more frightening how many legislators just say there in silence and said nothing as rights of our citizens were being taken away.,