Wednesday, March 21, 2007

SJR-7 Opponents Deliver One-Two Punch

The religious right struggled for a message to convince members of the House Rules Committee they should approve SJR-7 without their designated legal guru, Terre Haute attorney Jim Bopp, as opponents delivered a one-two punch to their efforts. If IU Law Professor Aviva Orenstein's masterful deconstruction of the amendment's language was not enough to lay its advocates bare, the surprising appearance by the state's two largest businesses, Cummins and Wellpoint, to speak in opposition to it was enough to send Eric Miller, Curt Smith, Micah Clark and their anti-gay bigoted ilk running for higher ground. After more than three hours of testimony, the committee adjourned without taking any action, agreeing to take a week to mull likely changes to the amendment in the face of today's compelling testimony against the amendment.

For those of you who missed Professor Orenstein's testimony today, you really missed out. Speaking of her deep concern for children (she directed the Child Advocacy Clinic at IU Bloomington) and her love of the Indiana constitution, she warned legislators about cluttering our constitution with an amendment which was so "vaguely and inartfully worded." She took direct aim at the wording of paragraph (b). Orenstein conducted extensive legal research to ascertain a definite meaning of "legal incidents of marriage." There is no common agreement among courts based on the decisions she reviewed. In Indiana, most of the cases she said dated back the 1800s and were in reference to the then-evolving property rights of women. Orenstein was convinced that phrase alone would generate future litigation.

Orenstein also questioned the breadth of the amendment in that it applied not only to the construction of the constitution but also "any law" enacted by the General Assembly. She differed sharply with proponents, who claim the inclusion of the word "construe" means the limitations imposed by the amendment apply to the courts only. She said legislators, governors and members of all three branches of government "construe" or interpret the constitution in carrying out their duties. While proponents insist a law could only be construed if it is ambiguous, Orenstein was quick to add that "ambiguity is in the eyes of the beholder." How can you possibly speculate on how laws which are yet to be enacted will be "construed" by a court at some point in the future? There is no agreement on what the amendment itself really means after several years of debate, let alone what a future law might provide, she noted.

Orenstein's analysis was further bolstered by the testimony of retired attorney Don Sherfick. He carefully traced the origins of SJR-7 to the original federal marriage amendment, which originally contained nearly identical language seeking to control construction of "any state law." Even the conservative proponents of the FMA agreed there would be unintended consequences and removed the troublesome language. Sherfick effectively discredited SJR-7's proponents and their supposedly "sincere" claims they don't intend the consequences opponents are "fear-mongering" about.

Testimony from the top-ranking human resource officers of Cummins and Wellpoint was something proponents had not anticipated. I was personally surprised that both companies went on record expressing their fear the amendment could have an adverse effect on the DP benefits they offer their respective employees. Many, including myself, believe the amendment will negatively impact the benefits offered by any government actor, but most believe the amendment would have no impact on benefit plans offered by private companies. I would hasten to add, though, that both of these companies are represented by some of the nation's best attorneys. I would be interested in seeing their legal analysis. Rep. Eric Turner (R-Gas City), the House sponsor of SJR-7, was noticeably perturbed by Cummins' and Wellpoint's testimony. Both Cummins and Wellpoint agree that SJR-7 will hinder future efforts to recruit the best and most diverse workforce in the future if it is adopted. Turner pressed both companies for proof of this claim without success.

I have to credit Rep. Scott Pelath for conducting an outstanding hearing today. He and other Democratic members challenged the proponents of the amendment in a way they haven't been challenged in the past. Pressed to explain why there is a fear of Indiana courts recognizing same-sex marriages or similar unions in light of the state's DOMA law and the Court of Appeals decision in Morrison v. Sadler denying there was any right under Indiana's current constitution to marry a person of the same-sex, the proponents were left with "who knows what those activist judges" will do in the future. Advance America's Eric Miller looked silly trying to draw a comparison to last year's House prayer lawsuit, which he continued to misrepresent as a case of an activist judge depriving members of the right to conduct a prayer before the start of each session.

The proponents seemed floored by inquiries about what constitutes a family and what it meant to "protect the sanctity of marriage". After stumbling around and upon prompting from Rep. Ralph Foley (R-Martinsville), Miller said he would accept the census data definition of a "family," which is anyone who is related by marriage, blood or adoption. The anti-gay bigots were united, however, in their belief that any "group of persons" headed by a same-sex couple was not a family because God told them it wasn't a family. Protecting the sanctity of marriage had nothing to do with curtailing divorces and out-of-wedlock births the proponents conceded under questioning--only ensuring that it was limited to the union of one man and one woman--again because God said that's what it's supposed to mean. Miller also displayed an ignorance of constitutional law when he was asked if litigation ensued after the enactment of SJR-7, where would the aggrieved parties go for relief. Miller suggested they would forum shop in state court. Of course, the only way you're going to strike down SJR-7 in the courts is in the federal courts based upon a federal equal protection or due process claim.

I will give the proponents some credit for coming clean today on their true motivations behind the second paragraph of SJR-7. They openly acknowledged their concern that, even if same-sex marriages were banned by the constitution, without the second paragraph a court might impose civil unions, domestic partner benefits or some other marriage-like arrangements. Try as they may to insist the General Assembly would still be free to create these types of arrangements, Professor Orenstein made a compelling argument it also ties the hands of the legislature, which she saw as a very undemocratic thing to do--deprive the legislature of the right to legislate in an entire area.

As much as Sen. Brandt Hershman (R-Wheatfield), the Senate author, and the other proponents wanted everyone to believe the amendment did nothing more than define marriage as between one man and one woman and put the issue beyond the reach of Indiana courts, committee members left today's hearing more confused about the true reach of the amendment than ever before. If today's hearing was a baseball game, you would have to say the proponents struck out at every attempt at bat.

You can read the Star's coverage of today's hearing here. Marcia Oddi of the Indiana Law Blog has some interesting thoughts about today's hearing as well, which you can view by clicking here.

7 comments:

Anonymous said...

I attended, also, and thought the good professor's arguments were spot-on. You'll notice Reps. Foley and Turner had no questions for her. That's because, intellectually, well...let's just say she was far their (combined) superior.

The Wellpoint and Cummins representatives were nice to hear. But I'm afraid, again, IE served us poorly. The businessmen's first comments were about their companies' ability to offer same-sex benefits in the future. That is not part of the current Amendment debate.

The culture of non-acceptance..now that's paydirt. Private companies' ability to offer these benefits is not addressed by this legislation. I heard Turner later dismissing Cummins's efforts, and you can bet he'll continue that diatribe. Completely avoidable.

If only the opponents' messages had been coordinated and well-planned. The professor and Sherfick would've gone first. The business representatives would've complained about the culture of non-acceptance, instead of the potential shutdown of same-sex partner benefits in the private sector. That culture diminishes our state's attractiveness to many future employees.

Pelath did a great job. A huge "attaboy" to Rep. Kuzman. Let's remember his excellent reasoning, next year, if he's seriously challenged by King Eric's minions. He made need our help.

Anonymous said...

oh, yeah--one more thing. The domestic violence network lady attorney at the end--fantastic!

Advance Indiana said...

Unfortunately, I had to step out early and I missed her testimony. I assume you're referring to Blomquist.

Anonymous said...

Does anyone know if the committee hearings are archived and available online like the Senate sessions are?

Anonymous said...

cannot remember her name. Your point is precisely mine: our organized lobbyists should've been queing up our witnesses, with proper cue remarks, and she should've been closer to the front.

Our side went last. Sometimes that's good. Often, it's not. Most of the news accounts I've read to date have not even mentioned her domestic violence enforcement angle.

Tully had left long before then. So had many reporters. Some stayed to the bitter end. Speaking of reporters, someone needs to remind RiShawn that when in public, he needs to at least look interested, instead of a spoiled brat sentenced to attend soemthing. Grow up already, and hang ground for all the meeting.

Blomquest was short, sweet, punchy, to-the-point. She basically said, the critical phrases would harm her organization's abilities to properly prosecute some domestic crimes.

Because sometimes, men beat up women to whom they're not married, but with whom they are in a relationship. Domestic violence laws are written to infer same-domicile or relationship status on those who are sometimes beaten by these men. All existing domestic violence laws would have to be rewritten if this Amendment passes, to avoid potential throwing-out of some cases.

Her warning was a shot across the bow. It gives any representative sufficient cover to vote against the Amendment as now written.

She was witty, too.

As for archives, I doubt we've entered the 21st century in that regard yet. For heck's sake, the committee members didn't even have a mike until late in the hearing. Not that I needed Eric Turner's or Ralph Foley's narrow-mindedness amplified, but it would've been nice to hear all their questions. 2007 indeed.

whtz said...

Just curious, where was Lilly in all this? I understood that they were extremely "family" friendly with some high ranking execs playing for our team?

Is that off the mark, are they working behind the scenes, or is there some other explanation?

Concerned said...

As an instructor at Ball State University, and a nearly life-long Indiana resident, I am more than a little concerned about this bill. While the wording of the amendment would not bar private corporations from offering same-sex benefits, government agencies and public universities would be barred.

This leaves some of the most educated members of the Indiana populace, namely the professorial staff of IU, Purdue, Ball State, Indiana State, IUPUI, and the like in a climate where their relationships are not offered even the most basic of recognition. With Governor Daniels' push to keep educated Hoosiers in the state, thus benefiting the Indiana workforce and economy, the passage of this amendment would be a setback beyond measure.

When you tie the hands of universities from offering domestic partnership benefits, you are telling the gay and lesbian professors that, despite their education and expertise, they are not welcome in the state of Indiana. The mass exodus of professors that may result from the passage of this amendment would be a huge slap in the face to the state.

This could also have unforeseen side effects on the Indiana economy. According to Syracuse University's S.I. Newhouse School of Communication, when one examines dual income households, gay and lesbian couples are the most affluent minority group in the nation.

In fact, according to MediaPost Publication in June 2003, "a published survey from the University of Georgia measured the buying power of this market to be in excess of $450 billion, with a similar marketing survey by Simmons Market Research showing an average household income of a typical gay male to be 41 percent over the national average."

Are our representatives in Indianapolis considering what they will do to the Indiana economy if this travesty of legal precedent is passed? It appears that, yet again, ideology has taken a back seat to what they are truly there to do: see to the betterment of the state of Indiana.

Should this amendment pass, I will be looking to a more gay-friendly state for employment.