[Pro-family organizations] are pleased that Speaker Pat Bauer (D) has agreed to allow the measure to be heard and likely voted upon . . . but they also fear that he will meet his commitment in substance but not form, agreeing to a vote only on an amended version that will protect his party from having the amendment on the statewide ballot in 2008, while still allowing them to vote for a same-sex marriage ban that will not mean much.
Some anxious House Democrats have joked ever since coming back in the majority about changing a comma from the Senate version, giving them political cover.
But we expect that things will become more complicated this week. The second sentence of the Resolution, the 29 words that say Indiana law cannot be construed to create marriage-like arrangements, has generated considerable policy and legal debate. Demos are hearing from a lot of business types (and some in the higher education community) who are very concerned about the potential interpretation of this provision, and who do not want to find themselves wrapped up in litigation as a result of domestic partner-type benefits they might offer employees, and we would not be surprised if Demos simply decide to excise the sentence in the House Rules Committee this week.
But if that sentence is removed, does that mean that the Constitutional amendment referendum is derailed?
Since the language of the amendment itself would be unaffected, you can expect some to argue that it should still be allowed on the 2008 ballot (and we’ve heard that there are already some legal memos floating around supporting that perspective). But there are also some who suggest that any alteration in the language of the Joint Resolution itself would serve to prevent the measure from being placed before Hoosiers for ratification . . . and you can expect a legal firestorm over how all this will shake out procedurally.
You can bet a legal challenge would ensue if proponents moved to place it on the ballot in 2008, even though it was amended. The proponents can probably muster a favorable legal opinion out of Attorney General Steve Carter (R), who proponents already claim backs up their claim the second paragraph of SJR-7 does nothing more than tie the hands of courts on the issue of same-sex marriage. The issue would no doubt wind up being decided by the Indiana Supreme Court. I think it's clear that is has been the past practice and understanding Indiana's constitution requires an amendment to pass two successive sessions in exactly the same form. If proponents insist on placing it on the ballot in 2008, even with an amendment, it will simply confirm the political value of having a favorite wedge issue on the ballot is more important to the proponents than any underlying substantive value of the amendment.
UPDATE: The Indiana Law Blog thinks it is much less clear than I do on the point of whether the amendment can be changed without starting the process anew. Marcia Oddi writes on the subject today:
We keep reading from the supporters of SJR 7 that the amendment must pass two General Assemblies in the same form, and that if one word is changed, you'll need to pack it up and start over. But where in the Constitution does it say that? What exactly does Art. 16 of the Indiana Constitution, the Article that deals with constitutional amendments, provide?
Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.
(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.
(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.(History: As Amended November 3, 1998). This is fairly vague as to the nitty-gritty. What about case law?
It turns out there are very few Indiana Supreme Court rulings on the procedure to be followed in amending the Constitution. The ILB has been unable to find a case touching on this specific matter. The closest I came was a case where the description of the constitutional amendment on the ballot outlined only part of its provisions. The Court ruled that was ok.
Again, I return to what has been the common understanding and past practice in this regard. I note in the Centennial History of the Indiana General Assembly there is support for my belief any change starts the process anew. In a discussion about the difficulty of amending the constitution, the Centennial History writes:
Amendments had to pass at two consecutive sessions and then be approved by the people. Frequently, what one session passed the next session disallowed or changed (emphasis added). On those occasions when consecutive general assemblies concurred in amendments, it was then up to the people to accept or reject the changes by majority vote.
The passage suggests to me a change in the language of an amendment frustrated attempts to put the issue before voters. I would hasten to add that for many years the majority vote requirement was interpreted by our state's Supreme Court to mean a majority of voters who participated in an election had to vote in favor of the amendment. That interpretation resulted in the defeat of a number of amendments which received a majority of those voting on the amendment but less than a majority of those voting in the election because many voters skipped a vote on a proposed amendment. The Supreme Court later reinterpreted this provision of the constitution to mean only a majority of those actually voting on the proposed amendment. As a consequence of that new interpretation, it became easier to ratify an amendment.
The Indiana Law Blog also raises some interesting questions about proposed legislation to handle the ballot language for SJR-7. SB 289 hands off this responsibility to the Legislative Council to prepare the ballot language. Oddi has problems with this provision of SB 289:
The legislative council has absolute discretion to determine the contents of a summary prepared under this section. A person may not bring an action in any court based on the exercise of this discretion.
Oddi believes the provision prohibiting a legal challenge is invalid. She asks, "If one could in the past challenge in court the ballot language written by the General Assemby, one wonders how the General Assembly can prevent such a challenge by delgating the responsibility to the Legislative Council?"