More Questions About Unintended Consequences Of SJR-7

The Star's Bill Ruthhart has a front-page story discussing the likely impact SJR-7 will have on the state's domestic violence laws respecting any unmarried couples who lives together as if they were spouses. Ruthhart specifically looks at the impact a broadly written gay marriage ban is having in the state of Ohio. He writes:

Justin McKinney was sniffing gasoline out of a milk carton when the woman he lived with in the small town of Richwood, Ohio, came home.

For some reason, McKinney got angry, chased her down an alley and kneed her in the stomach. Police had to use a Taser to subdue him. Prosecutors charged McKinney with domestic violence.

His attorney never argued that he didn't hit the woman, and McKinney was convicted last year in the February 2006 attack. But last month, an Ohio appeals court reversed the conviction because McKinney and the woman were not married.

To blame: Ohio's constitutional amendment banning same-sex marriage, which is similar to the measure that Indiana's General Assembly has been debating this year.

Two of Ohio's 12 appeals courts have ruled that the amendment prevents unmarried couples from receiving the benefits of marriage, including protection under the state's domestic violence laws.

In those appellate districts, which cover 23 of Ohio's 88 counties, prosecutors faced with scenarios like McKinney's can only file charges of misdemeanor assault instead of domestic violence, which can be a felony.

Opponents of Indiana's proposed amendment worry the same could happen here.

"No attorney, no constitutional law expert, no academic in the world can tell you how every court in the state of Indiana is going to interpret this amendment," said Kerry Hyatt Blomquist, legal counsel for the Indiana Coalition Against Domestic Violence.

"As in Ohio, there may be judges that will see no conflict between the amendment and our existing domestic violence laws. But also as in Ohio, there may be judges that will."

While Indiana's amendment is worded differently than Ohio's, it's language raises equally important doubts about its impact. IU Law Professor Aviva Orenstein demonstrated that fact at Wednesday's hearing on SJR-7 when she observed the lack of any clear definition for what the term "legal incidents of marriage" means. And contrary to the proponent's claim, Orenstein insisted the amendment would apply to legislative enactments and not just to a court's interpretation of the amendment because of the amendment's language extending its applicability to "any other state law."

Sen. Brandt Hershman's reaction to opponents' claims about the unintended consequences of SJR-7 is quite insulting. "This is willful ignorance on the part of the domestic violence community," he told Ruthhart. "They are pushing more of a social agenda than they are a legitimate concern." "There is little to no question that this amendment would have any impact on Indiana's current domestic violence law." The religious right's go-to guy on constitutional issues, Terre Haute attorney Jim Bopp, attempts to deflect the concerns as well. "The legislature, in the statute, has provided protection against domestic violence for people who are unmarried and have long-term relationships and live together," Bopp told Ruthhart. "That is perfectly legal under this amendment." Bopp, of course, is referring to a law the proponents of SJR-7 are currently trying to rework through SB 65. There seems to be little doubt that legislation was prompted by the legal developments in Ohio and its potential impact on SJR-7's fate.

At this time, I feel compelled to share a rumor an interested reader of this blog has shared with me. During Wednesday's hearing on SJR-7, retired attorney Don Sherfick shared with committee members the history of the federal marriage amendment upon which the language of SJR-7 rests. Sherfick noted an original draft of the FMA included language nearly identical to Indiana's SJR-7. As Sherfick explained in his testimony:

The implications of this issue are far-reaching because of the large list of things people like Congresswoman Linda Musgrave, sponsor of the parallel Federal Marriage Amendment say the term "legal incidents of marriage" includes. Regardless of how arguments over how close SJR-7 tracks amendments in Ohio, Michigan, or other states, and whether or not bad effects elsewhere might happen in Indiana, the key matter is WHAT SJR-7 itself has to say about our legislature's authority.

Lay the text of SJR-7 aside that of the original Federal Marriage Amendment as proposed and you'll quickly see that the first was copied almost verbatim from the second. And then know this: in 2004 even conservative Republican sponsors of the Federal Marriage Amendment were unsure and disagreed over the same central question I just mentioned. To make the matter crystal clear, they amended it by taking out the term "state law". Representative Musgrave and Senator Allard were quoted nationally as saying [quote]"We want to make it clear, without any ambiguity, that states do have a role in dealing with civil unions and benefits related to marriage."

Now let me return to the rumor which has been shared with me by a concerned reader. According to this source, some house members reportedly received a letter accusing Sen. Hershman of hiding the mistake he and others made in copying the original version of the FMA rather than the amended version. Based upon a conversation I've had with Don Sherfick, I believe this to be the letter he sent to all one hundred members of the Indiana House. One of the alleged recipients of the letter was House Republican Leader Brian Bosma. Bosma is reported to have directed the concerns raised in the letter to Advance America's Eric Miller, who in turn conferred with the AFA's Micah Clark. Clark reportedly urged putting out a preemptive response to the charge raised by Sherfick, but Jim Bopp is reported to have counseled against it.

The proponents were said to be extremely nervous going into Wednesday's hearing. Sherfick fully anticipated the proponents to have both barrels loaded ready to fire at him when he leveled the charge publicly at the hearing. Surprisingly, Bopp did not appear to testify as the proponent's leading constitutional scholar as he did when the amendment was heard in the Senate and none of their witnesses broached the subject. They all breathed a big sigh of relief when members of the House Rules and Legislative Procedures Committee did not question them about the matter, and when legislators failed to follow up even after hearing Sherfick's testimony.

The importance of the concerns raised by Sherfick cannot be understated. Is it not an outrage that we are about to add language to our constitution which may have in fact resulted from one person's mistake of copying the wrong version of the FMA and refusing to admit his mistake? And that single mistake could have a far-reaching impact on not only our state's domestic violence laws, but also any law impacting rights of unmarried couples. It is disappointing legislators didn't hold the proponents feet to the fire on this important issue. Sen. Hershman, Bopp or one of the other leading proponents should be required to address this question in public before any further action is taken on this ill-conceived amendment. I'm quite pleased reporters like Ruthhart are devoting a great deal of attention to the unintended consequences of SJR-7, but I also wish they would get to the bottom of the origins of its language.

Here is the comparison of the FMA and SJR-7 as discussed by Sherfick:

Before 2004 the second section of the proposed FMA said:

Neither this Constitution, nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Note the close/exact parallels to the corresponding part of SJR7:

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.

In mid-2004 the FMA proponents changed it to read:

Neither this Constitution, nor the constitution of any state, [deletion here] shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.