Tuesday, March 27, 2007

SJR-7 Legal Analysis Full Of Holes

According to Taking Down Words, a legal memorandum has been prepared by The Marriage Project on behalf of the proponents of SJR-7 and is being circulated to newspaper editorial writers around the state of Indiana to rebut the arguments opponents have been making that the amendment does more than just define marriage. My own analysis of their memorandum reveals it is riddled with legal holes, which create far more uncertainly than the assurance it seeks to provide Indiana lawmakers as they ponder whether to send the amendment to voters as is, or to make significant revisions to avoid "unintended consequences."

While opponents, led by attorney Don Sherfick, have pointed out that the language of the proposed amendment was borrowed from an earlier, flawed version of the federal marriage amendment (FMA), the memorandum boasts of the amendment's similarity with the FMA, without mentioning it is based on an earlier version rejected by even the FMA's authors. The memorandum reads:

The Congressional text and the Indiana text have sprung from the same seed. They have the same source and the same purposes. In our judgment, the two texts must be read together. The two documents are not formally equivalent, but they do address the same subject matter in virtually the same words, and their interpretations can be harmonized. The meaning of the former can lead to an understanding of the latter.
The memorandum relies on Sen. Wayne Allard's reasoning for the second paragraph without noting the differences between the language of the two. As Allard explained:

The second sentence simply ensures that the people or their elected representatives, not judges, can decide whether to confer the legal incidents of marriage on people. Citizens remain free to act through their legislatures to bestow whatever benefits to same-sex couples that they choose. It is aimed squarely at the problem of judicial activism.

What our amendment does is to define and protect traditional marriage at the highest level – the U.S. Constitution. Importantly, the consideration of this amendment in the Senate represents the discussion of marriage in America in a democratic body of elected officials. I am not willing to surrender this issue to the courts.

As Sherfick and others have noted, however, the FMA removed the language extending the amendment's limitation to "any federal law" or "any state law"; it applies only to the U.S. Constitution or a state constitution. The omission of this significant difference in the proponent's legal analysis completely undermines their contention that it does not in any way limit what the legislature can do in providing benefits other than marriage to unmarried couples, whether straight or gay.

Next, the proponents provide specious arguments in their legal memorandum to provide a justification for an amendment limiting marriage to opposite-sex couples. While the memorandum acknowledges that Indiana has already statutorily limited marriage to opposite-sex couples, and that the Court of Appeals in Morrison v. Sadler upheld its constitutionality, this is not enough we're told. The statute is not "safe", it says, because the decision was not made by the state's highest court. And you know what those activist judges are capable of doing. The memorandum warns of what has happened in other states:

That decision is tentative, however. Lower courts in Vermont, Massachusetts, and New Jersey all upheld the lawfulness of man-woman marriage. However, when the cases were appealed to courts of last resort, the lower courts were reversed. Apparent victories at the appellate courts turned into defeats at the supreme courts. It is na├»ve to suppose that constitutional challenges to Indiana’s DOMA have ended. Indiana is only between rounds.

What is missing from the legal analysis is that Indiana, unlike these other states, applies a much less rigorous standard in reviewing any statute on state constitutional "equal protection" concerns. Our state's "privileges and immunities clause", unlike similar clauses in these other states cited by the proponents, reviews the constitutionality of a statute according to the rational basis standard, which presumes any legislative enactment to be constitutional, even if a fundamental right is at stake. These other mentioned states apply a heightened scrutiny analysis in similar cases. Further, the Court of Appeals in Morrison v. Sadler notes there is no precedent for conferring as a fundamental right a right to marry a person of the same-sex. Very rarely has any plaintiff ever succeeded in overturning a statute approved by our General Assembly. Moreover, the proponents cannot cite a single case in which the Indiana Supreme Court recognized any previously unrecognized right--so-called "springing rights" which arise from an evolving standard of justice as interpreted by the court.

The memorandum seeks to dismiss the concerns raised by the opponents about the unintended consequences. They insist it is necessary to prevent the court from forcing recognition of something less than marriage, such as civil unions, as happened in Vermont or New Jersey. They write, "A one-sentence amendment may safeguard Indiana from the “Massachusetts malady” of having same-sex marriage thrust upon them by a one-judge majority of an over-active court (i.e., Massachusetts), but a one-sentence amendment will not safeguard you from the kinds of challenges to marriage and democracy that arose in Vermont and New Jersey." Again, they ignore the differing and more rigorous legal standards upon which those states' courts use in the interpretation of their respective constitutions. And they also insist it will not limit the legislature, but the amendment clearly applies to statutory enactments. They write: "As we read it, the Indiana amendment will not prohibit the Indiana legislature from doing what the Vermont and New Jersey legislatures did; the Indiana amendment will prohibit the Indiana courts from doing what the Vermont and New Jersey courts did."

They assure us the words "or any other law" is of no extra meaning because the phrase is preceded by the word "construe". "Indiana’s addition of the term “or any other Indiana law” does not amount to a decisive difference in the amendments because, in our judgment, the key term in both texts is the word “construed,” and not what precedes it," they maintain. But as Professor Aviva Orenstein correctly observed, the word "construe" does not confine its application to the courts only. Indeed, every actor within our government is engaged in "construing" or interpreting our constitution in carrying out their constitutionally-prescribed duties, whether a member of the executive, legislative or judicial branch. The only cases the proponents can cite for their contention are ordinary cases of statutory interpretation. They can point to no precedent for a court limiting a constitutional provision's applicability to a court because of the presence of the word "construe."

It is also quite telling that the proponents seek to explain what the term "unmarried couples or groups" means, but they completely ignore the equally significant term "legal incidents of marriage" in their legal analysis. Explaining the need for the term "unmarried couples or groups", they write, "[t]his is [necessary] to prohibit imitations of marriage, and counterfeits." Professor Orenstein noted her struggle to find any common definition of the term "legal incidents of marriage" in Indiana law or elsewhere. Most of the decisions she found in Indiana dated back to the 1800s and dealt with the then-evolving property rights of women. It is critical to know the meaning of the term, however, if you are going to insist it would not affect other rights such as domestic partner benefits. The proponents seek to dismiss the Michigan court ruling adversely affecting domestic partner benefits there. "The Michigan decision is not directly related to Indiana’s debate because the constitutional texts are different, but the Michigan decision ought to teach us that a constitutional amendment on marriage can both strengthen marriage and benefit unmarried persons," they write. But they add, "The second sentence of the Indiana amendment does not speak about individuals, but of “unmarried couples or groups.” Again, they ignore the term "legal incidents of marriage." They won't seek to define it because they know, as Professor Orenstein learned from her research, there is no clear definition.

I implore newspaper editorial writers and lawmakers who've been provided a copy of this legal memorandum to press the issues I've raised here. There's too much at risk when it comes to amending our constitution. We should leave nothing to chance. The proponents have miserably failed in their efforts to convince us the amendment will accomplish only what they want us to believe it accomplishes. It does much more. Someone needs to put an end to this madness before it's too late.


Anonymous said...

Just wanted to point out, friend, that circulating proposed op-ed pieces, is one more job IE should've done for us.

A complete lobbying job involves more than just the legislature. Opinion makers needed an across-the-board assault, beginning last fall.

Gary R. Welsh said...

Actually, that's the one area where the proponents have done very well. Every newspaper in the state of any note has editorialized against SJR-7. I believe the blogs have played a critical role in raising the tough questions about the amendment. Many editorial writer have picked up on those questions and used them as a basis for their opposition.

Wilson46201 said...

I understand that so far, no Hoosier newspaper has endorsed SJR-7 but many have questioned the need for such an Anti-Marriage Amendment.

IE is not some wealthy, alien entity deigning to do stuff for LGBT Hoosiers. They do what they can with what resources they have. The wingers peddle stories of "rich queens" dominating politics with cash - sadly, IE doesnt have beaucoup bucks...

Anonymous said...

Uh, Wilson, they raised enough to pay our lobbyists, by last reports, over 20 large in the last session. A little cost-benefit analysis is in order.

A volunteer effort, fanned out across the state, but orchestrated by the lobbying group, is what not-for-profits do annually.

It's not brain surgery. But it is work. Orchestrating public opinion "back home in the district" actually does move legislators. It's a mining effort, but well worth the time.

I am certain that with a minimum of staff time, a similar effort could've been raised among church groups, newspapers, political allies and similar organizations across Indiana. The NFP Interfaith Coalition has a pastoral letter signed by over 300 statewide ministers, for example. That's powerful.

It doesn't all happen in Indianapolis.

We may not have Eric Miller's resources. I think his fund-raising and expenditures are obscene. But never under-estimate what a few well-organized citizens can accomplish. I choose to believe this could have happened, if IE had been better prepared.

Anonymous said...

Anonymous said "never under-estimate what a few well-organized citizens can accomplish. I choose to believe this could have happened, if IE had been better prepared."

It's not over yet.

Anonymous said...

And what has "anonymous" done in Fort Wayne, Evansville, Bloomington, South Bend, Lafayette, Richmond and Gary? Does he/she have any idea what IE has done? Or what coalitions have been forged across the state? Or maybe any idea of what actually IS happening in any of those cities outside Indianapolis. Easy to criticize from the sidelines. Roll up your sleeves and get involved.

Let's realize we are all on the same team and have the same goal ahead of us.

Anonymous said...

What makes you think I'm not involved, not aware of the efforts being made? Kinda presumptive to think otherwise.

We're all on the same team, but the paid folks have been sorely lacking in organizing and lobbying skills. Just a fact.

I know multiple folks who have done much letter-writing, phone calling and personal legsialtor and opinion-maker visits.

Shoulders to the wheel...it is important. But it could've been so much different...

Anonymous said...

That said lets keep focused and press on. The Clark/Miller "gang" is pulling out all the stops and has launched a "no holds barred" campaign of destruction. They will resort to anything to get their way.

I wish the committee would vote already before anymore media damage is orchestrated by these insane people.

Edward Fox said...

It is instructive to consider the two approaches taken by proponents of this language before the United States Congress, and before the Indiana Legislature. Senator Hershman stubbornly maintains that the text is clear, all debate on its meaning to the contrary notwithstanding. He would have us believe that he does not intend it to constrain future legislatures. But he holds tenaciously to the text as written; or rather to the text as borrowed. He got the text from Representative Musgrave's Federal Marriage Amendment, as a casual perusal of the two will demonstrate. He has admitted as much.

When Marilyn Musgrave presented her proposed amendment, objections similar to those we are discussing arose. But in that case, Musgrave, Allard (sponsor in the Senate) and one of the authors, readily dropped the contentious text in favor of one that seemed to all parties unambiguous.

If you are drafting a legal document, it is foolish to insist that your version is perfect if other people see objections to it and can offer alternatives that no one finds ambiguous. What reason could Hershman have to cling stubbornly to the text (it would seem that it is not even his; Judge Bork could have felt that his reputation as a legal drafter was in question, but he is experienced enough to know that his reputation rests on precisely not insisting on keeping text that could be made clearer)? Hershman may simply be stubborn and unclear on the benefits of critical reading of legal texts before they end up in court (proponents of the amendment rely on uncritical reading of the Bible and may lack the practice in examining their own motives and actions that serious legal scholars and scientists have). Or he may have ulterior motives; we are entitled to be suspicious: he has tried to remove domestic partner benefits from public universities before; he could easily be hoping that he can force this murky text through and then exploit it precisely as he now says it cannot be used. By then it would be too late for the state.

Here is the transcript of Judge Bork's testimony and an excerpt from his prepared statement where he agrees that the offending text is unclear and "poorly drafted" and recommends that it be changed to accommodate the very objections that we are now discussing. It is simply dishonest to use Wayne Allard's defense of the language when he was defending precisely the change that Hershman rejects.

Testimony of Judge Robert Bork before the Subcommittee on the Constitution
of the Committee on the Judiciary; House of Representatives; One hundred eighth congress; Second session; on H.J. Res. 56; May 13, 2004:

"Since I had something to do with the drafting of the version of the House amendment proposal, I think I am free to say that I am now not entirely happy with what we did. The first sentence is quite clear. The second sentence, however, which was intended to say that a court should not require civil unions as a matter of constitutional law, only legislatures could do that, some people said, well, the second sentence could be read to say that the legislatures could not do it either.

"Now we are prepared to argue that point, but it is not a point worth arguing because we have no intention of trying to prevent any democratically enacted form of civil unions. So for that reason I agree with Congressman Musgrave that the Senate version is the one that should now be made, that the House version should be made congruent with the Senate version so that it is quite clear that marriage is between a man and a woman and that civil unions are up to the various legislatures in what they may decide. Thus, Vermont, which now has a civil union legislation enacted under coercion of the courts, would be free either to retain or to repeal that legislation.

"The Senate language makes absolutely clear that was intended in the House version from the beginning; and I recommend that that version, the Senate version, be adopted by the House."

From Judge Bork's prepared statement submitted at the same time as the above testimony:

"Objections to this second sentence have convinced me that it is poorly drafted and causes needless controversy. Critics say that, read literally, the sentence would forbid courts to implement legislatively-enacted civil unions. That was not the intent. It was hoped that this objection could be avoided by making the intention of the sentence clear in the debates that would surround the amendment in Congress and, if sent to the states, in the ratification debates. It was thought, moreover, that the word ‘‘construed’’ would indicate that the sentence was intended merely to restrain activists courts from requiring civil unions against the desires of the legislature involved.

"There is no point in debating this matter when altering the language of the second sentence can make the point clear. For that reason, I recommend the version of the second sentence contained in Senate Joint Resolution 30: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, 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." There is no doubt whatever, that this sentence leaves legislatures free to provide for civil unions if they wish. Thus, Vermont, which now has civil union legislation enacted under the coercion of its supreme court, would be free either to retain or repeal that legislation. The Senate language makes absolutely clear what was intended in the House version of the Federal Marriage Amendment."