Wednesday, February 21, 2007

What's Up With SB 65, Sen. Hershman?

During this year's debate on SJR-7, there has been extensive debate about the unintended consequences of the second paragraph, which reads: "This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups." Among the arguments surrounding the unintended consequences of this language is the impact it will have on domestic violence statutes which currently protect unmarried partners in Indiana. In Ohio, for example, some courts have ruled that a similar state constitutional ban on same-sex marriages had the effect of making domestic violence statutes inapplicable to unmarried partners.

Making its way through this legislative session with little discussion is SB 65, which was originally introduced as a vehicle bill by Senate President Pro Tempore David Long (R-Fort Wayne). Last week, after Sen. Brandt Hershman (R-Wheatfield) replaced Long as the principal author, the bill was reassigned from the Rules and Legislative Procedure Committee to the Corrections, Criminal and Civil Matters Committe. New language was inserted into the bill which deals oddly enough with the subject of domestic violence. As the LSA synopsis reads:

Amends the definition of "family or household member" in IC 35-41-1-10.6 to include (1) a person who lives or formerly lived in the same household as the other person or (2) is the present spouse of a former spouse of the other person. Amends definition of domestic battery to provide that the offense is committed if the prohibited behavior results in the bodily injury of a family or household member of the person engaging in the behavior. Makes conforming amendments.
The bill replaces the current statutory language defining a "family or household member", which now reads:

(a) An individual is a "family or household member" of another person if the individual:
(1) is a current or former spouse of the other person;
(2) is dating or has dated the other person;
(3) is or was engaged in a sexual relationship with the other person;
(4) is related by blood or adoption to the other person;
(5) is or was related by marriage to the other person;
(6) has or previously had an established legal relationship:
(A) as a guardian of the other person;
(B) as a ward of the other person;
(C) as a custodian of the other person;
(D) as a foster parent of the other person; or
(E) in a capacity with respect to the other person similar to those listed
in clauses (A) through (D); or
(7) has a child in common with the other person.

I don't profess to be a legal expert on Indiana's domestic violence laws, but I would be interested in hearing other's opinions as to what Sen. Hershman is up to with respect to SB 65 and how it relates to the impact of his discriminatory SJR-7 constitutional amendment. It seems to me Hershman is trying to remove language which equates the relationship between a married couple and an unmarried couple living together as if they were a spouse for purposes of our domestic violence statutes, but specifically, the criminal statute for domestic battery. In the domestic battery statute this language is struck: "(1) is or was a spouse of the other person; (2) is or was living as if a spouse of the other person." Because SJR-7 will not permit a statutory law to confer the "legal incidents of marriage" on an unmarried couple or group, the domestic battery statute couldn't be interpreted to apply to a person "living as if a spouse of the other person" as it currently does.

What Hershman's legislation does is divide those protected by the domestic violence statutes between those who are "family" members as opposed to merely "household members." Of course, an unmarried domestic partner of another person would be a mere "household member" for purposes of these statutes as opposed to a "family" member.

Looks like more mean-spiritedness to me, but I would like to hear from others who understand these laws more than I do. Hershman appears to be anticipating an outcome in the courts like what has happened in Ohio if SJR-7 is enacted, and he is trying to head it off so it doesn't become an issue here. If Hershman doesn't believe there will be so-called "unintended consequences" from the enactment of SJR-7 as he says, why does he need SB 65?


Anonymous said...

Your analysis is spot-on, Gary. Hershman and comrades are devious SOBs.

Edward Fox said...

My guess is that he has run into legislators who have read the fine print and realize that, at the very least, his amendment (SJR7) puts domestic violence law at risk. (I have worked with the sisterhood, and you do not want to tangle with them.)

His solution is creative: he is proposing a law to change the definition of who qualifies so that the constitutional amendment will no longer apply to them. Sort of like writing a law that defines Paganism as a social club, so that you could discriminate freely against them without running up against the freedom of religion nonsense.

My guess is it will not work in the courts. I doubt that Hershman would want it to do so. Whether he can bamboozle legislators into thinking that law or chicanery can trump a constitutional amendment (i.e. the constitution) I cannot say.

Wouldn't it be nice to have two houses full of legislators who knew that the constitution trumps any law, without having to be told?

Anonymous said...

Ed, you're dreaming.

Harrison Ullman was right, God rest his soul.

"America's worst state legislature."

All those bad sportcoats and hair add up to about four combined brains.