"I'm afraid that the demagoguery is saying we have to have both sentences. You don't have to have both," said Bauer, D-South Bend. "Part A bans gay marriage in the constitution. Part B is not necessary, but they're trying to say it is, and they're putting up an ugly fight."
By taking this position, Bauer forces the proponents to admit they really want to do more than just ban same-sex marriages in Indiana. They claim it's needed to prevent the courts from circumventing the amendment by allowing civil unions. "That's the fear," said Sen. Brandt Hershman, R-Wheatfield, the amendment's author. "The first sentence would provide some greater protection than exists today, but removing the second sentence weakens the overall effectiveness of the amendment."
That begs the question of what a civil union is in the minds of the proponents. Sen. Brandt Hershman in 2003 said he believed offering DP benefits at a state university amounted to providing legitimacy to a same-sex union. That prompted him to offer an amendment to the state budget which would have cut off funding to any public university which offered the DP benefits.
Changing the amendment also brings up the debate whether the change would require the amendment to restart the process, or whether it can still be sent to voters in 2008. Ruthhart explains Bauer's position the amendment can still go before voters in 2008, even if the second paragraph is struck from the amendment:
Bauer's chief of staff, Pete Nemeth, refers to a constitutional amendment passed by the General Assembly in 1982 and 1984. That measure, which dealt with legislative representation in the General Assembly, was changed after the 1982 vote and still was approved by voters.
"This sets the precedent that this can be changed and not slow down the process whatsoever," Nemeth said of the amendment.
Pelath also has cited a 1972 Indiana Supreme Court decision, which he said allows the legislature to alter an amendment and still send it to the ballot.
Hershman and House Minority Leader Brian Bosma aren't buying their argument. "Hershman said those arguments aren't strong enough to withstand a legal challenge." "The precedent set in the 1980s, he said, was never challenged in court and was technical compared to an amendment banning same-sex marriage." "I don't think these precedents are clear," Bosma said. "I don't think legal scholars are going to formulate the same opinion the speaker's advisers have."
Isn't it interesting how unwilling Hershman and Bosma are to trust precedent in Indiana law on an issue involving the process of amending the constitution, while at the same time the two expect the opponents to take everything to chance over a paragraph even conservative legal scholar Judge Robert Bork conceded was "poorly" drafted? And that was quite an admission on Bork's part concerning a virtually identical version of the original federal marriage amendment, which he helped draft. I'm not sure which way the court would rule on this issue, but it's completely nonsensical and highly political to take the position you can't make any change to a proposed change in the Indiana Bill of Rights because it may take a little longer to accomplish the change than the proponents would like, particularly when there is not one scintilla of evidence Indiana courts would ever recognize same-sex marriages.