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 naïve 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.