Wednesday, March 21, 2007

Some More Thoughts On SJR-7

There are a few more ideas I would have like explored at today's hearing if I had been given an opportunity to speak. Rep. Scott Pelath (D-Michigan City), who chaired today's hearing, allowed each side one and a half hours of time to present their case. He allowed designated "leaders" for each side to submit witnesses in advance. For the opponents, Mark St. John, the IE lobbyist who contributed $500 to Rep. Woody Burton (R-Greenwood) (author of Indiana's DOMA) and who assaulted two GLBT activists for protesting at the State House in opposition to SJR-7 after a State House rally last month, assumed this role. Of course, Mr. St. John blacklisted me to make sure my views could not be heard. Fortunately, many of the points I would have discussed were very well presented by Professor Aviva Orenstein and Don Sherfick.

One of the issues I would like legislators to consider deeply as they ponder what to do with SJR-7 is an understanding of what part of our constitution they are seeking to amend. SJR-7 adds the same-sex marriage prohibition and the preclusion of the "legal incidents of marriage" for any "unmarried couples" to our Bill of Rights as set out in 37 sections of Article I. The Bill of Rights embodies those individual rights we hold so fundamental that we feel it important enough to ensure their protection against government action or an oppressive majority acting in the normal exercise of the democratic process. While the proponents tell us amending the constitution is no big deal because it's been done more than a hundred times, amendments to our Bill of Rights have been very rare. And when it has been amended, it was done to include groups of citizens who had been previously excluded.

In 1984, the voters approved an amendment to the Bill of Rights which removed all references to "men" and replaced it with the word "persons". As originally written, the Bill of Rights applied almost exclusively to men. Women did not have the right to vote, and they had limited rights to own property. Our evolving view of equality between the sexes wisely led state legislators to propose an amendment to make the Bill of Rights gender neutral. That same year, the legislature also included an amendment to remove language offensive to African-Americans--a vestige from the days of slavery.

In 1996, the voters were given an opportunity to approve an amendment to the Bill of Rights which set out the rights of victims. Our Bill of Rights had always spelled out a number of fundamental rights for the criminally-accused, but the victims believed they were left out of the criminal process. This measure had broad-based support from conservatives and liberals alike.

These amendments all shared in common the purpose of inclusion, not exclusion. Women, African-Americans and criminal victims were secured additional protections through amendments to our Indiana Bill of Rights. To whom does SJR-7 secure additional protections from the government or an oppressive majority I ask? Opposite-sex couples who must be encouraged to procreate within the institution of marriage, which is to be left to their exclusive domain?

I should add on a sad note, Indiana once enshrined discrimination in its constitution against African-Americans through the so-called exclusion amendments. Interestingly, those amendments were placed in the Article 13 rather than the Bill of Rights. These amendments did such things as exclude blacks from entering the state and ban interracial marriages. The Article 13 amendments were invalidated by the enactment of the 13th, 14th and 15th Amendments to the U.S. Constitution following the Civil War. They were subsequently repealed.

The father of our U.S. Constitution, James Madison, for very good reason adamantly believed that the process of amending the constitution should be difficult. He believed there should be a strong presumption against all amendments. Only those amendments which remedy a serious structural defect in the document or attempt to include groups previously excluded should be given due consideration according to Madison. Because opposite-sex couples are already the beneficiaries of more than 1,100 specific statutorily-granted rights, it cannot be said that SJR-7 seeks to include a group previously excluded. So is there a structural defect in the Indiana constitution?

The defect, if any according to the proponents, is that Indiana is vulnerable to an "activist judge" mandating same-sex marriage upon all of us against the will of the majority as they claim has happened in other states, such as Massachusetts or New Jersey. Here are the facts. Indiana has never recognized a same-sex marriage, whether performed instate or in another state or country in which it is legally recognized. For the past decade, Indiana has had a state statute defining marriage between opposite-sex couples only and prohibiting the recognition of same-sex marriages created under another state or country's law. Similarly, for more than a decade there has been a federal defense of marriage law defining marriage as between opposite-sex couples only and providing that the states are not required to recognize the validity of same-sex marriages authorized in another state or country. So from a statutory standpoint we have things locked down.

As for those activist judges, hello, this is Indiana. The proponents of SJR-7 talk very little about the Morrison v. Sadler decision, an Indiana Court of Appeals decision from a little more than two years ago which upheld the constitutionality of Indiana's DOMA statute and ruled that Indiana's Bill of Rights does not secure the right of same-sex couples to be married to the person of their choice. It is the only Indiana decision of applicability, and it is directly on point. What the Morrison decision illustrated is that same-sex marriage proponents can never succeed under Indiana's long-held equal protection jurisprudence. That's because our courts have determined that the "privileges and immunities clause" in Section 23 is not violated when the legislature limits marriage to opposite-sex couples. Unlike many other states, Indiana courts have long applied a rational basis test for determining whether a statute violates our "privileges and immunities clause". This standard presumes a statute is constitutional. The state need only demonstrate a reasonable basis for treating a class unequally to satisfy this low constitutional hurdle, even if it affects a person's fundamental rights. By comparison, those states which have found rights for same-sex couples apply a much more rigid standard than Indiana, subjecting a statute to stricter scrutiny.

In Morrison, the court found the "legislative classification of extending marriage benefits to opposite-sex couples but not same-sex couples [to be] reasonably related to a clearly identifiable characteristic"--"marital procreation justification." The Morrison court noted that it had surveyed more than 90 decisions in which a statute was challenged under Indiana's "privileges and immunities clause". It could find only three cases in which the statute was held to be unconstitutional. Two of those case involved the Medical Malpractice Act and the application of its statute of limitations to specific litigants. The other case involved an individual woman's right to an abortion under the Medicaid program where she faced permanent or serious bodily harm if she weren't allowed the right to an abortion. Proponents' suggestion that there is a real and present danger of any Indiana court recognizing same-sex marriages under Indiana's constitution is laughable to say the least.

There was plenty of discussion today about the unintended consequences of SJR-7. A common refrain from the proponents was that the amendment had been adopted by 27 states and, with the exception of Ohio and Michigan, there had been no unintended consequences and Ohio's and Michigan's language is written more broadly. They fail to note that not all of those 27 states have broadly written amendments. At least 10 of them limit their amendment to a definition of marriage. Another 17 have more broadly written amendments in varying forms similar to Indiana's proposed SJR-7. Most of these amendments were enacted in just the last five or six years so cases have not necessarily worked their way into the system. It is very telling that three states surrounding Indiana have experienced issues with their amendments. Ohio courts have invalidated domestic violence statutes. A Michigan appellate court has invalidated domestic partner benefits offered by government actors. And in Kentucky, some lawmakers there believe that state's constitutional ban excludes domestic partner benefits from being offered by that state's public universities.

The bottom line--the proponents have failed miserably in making their case that we need SJR-7 because either there is a structural defect in our constitution or there is a group that is in need of inclusion. Let's put this amendment on ice. In a few years, people will stop talking about this issue just like they did with the abortion amendment, flag burning amendment, prayer in school amendment, Liberty amendment and whatever other nutty idea the religious right cooked up to troll for money and votes.


Anonymous said...

You forgot to mention St. John plundered Indiana Cares and left many HIV/AIDS providers and clients out in the cold.

Anonymous said...

I find it interesting that the proponents - Eric Miller in particular - keep harping on the "but 27 other states already have this in place" argument. Yet 46 other states have a hate crimes law and Eric Miller crusaded heavily against Indiana having one. So his follow the majority logic is hypocritical and a complete double standard.

Gary R. Welsh said...

Very good point, Kevin.

Obob said...

I pray the banning of same sex marriage dies a miserable death. As opposed to Tony Dungy, celeb trashing moment, I have friends who are gay and I cannot look them in the eye and tell them they cannot marry the one they love. Us heterosexuals haven't done well in marriage and its true meaning. Good luck

Obob said...
This comment has been removed by the author.
Anonymous said...

I have learned of efforts to weaken, kill or delay SJR 7.

I support the second sentence preventing a judge
from forcing the legislature to create same-sex marriages by another name like 'civil unions.'

Phony scare tactics
about the impacts of this phrase have already been rejected by the Senate
and rebutted by numerous legal experts.

As a voter, I want to vote on this issue next November.

A vote to amend SJR 7 into something different than the Senate passed version is just WRONG.

Mothers and fathers both matter to a strong society, it is why marriage needs constitutional protection.

Allow Hoosier
VOTERS, not unelected judges, to decide this issue.

Unknown said...

Hi Gary,

I agree the proponents had nothing new - I thought that the diversity of people the opponents had was significant.

I did want to give you some extended info on the questions I was asked.

27 states - of the top 10 new economy index states by the Kauffman Foundation only 2 have marriage amendments. Of the bottom 10 in the index 8 have marriage amendments. Of the top 20 USnews ranked engineering grad schools, 15 are in states without marriage amendments. There is a trend here.

Even better on the 27 states - lets talk about Daylight Savings Time! We certainly didn't care what other states did for a long time.

Why did I come to Indiana in 1988 when there was a marriage statute? I was 28 and had not ever even considered discussing my sexuality let alone imagining I would do so in front of the state legislature.

Keith Bowman

Jerame said...

Why do these right-wing fundies always resort to this "let the voters decide" rhetoric when they don't get their way? They claim to have a love of democracy, yet their insistence of tromping the rights of a minority is the polar opposite of democracy.

A lesson for you "democracy lovers" out there...A fundamental tenet of democracy is the staunch protection of the minority from a tyrannical and unjust majority. Democracy is not just "majority rule". That's no different than mob rule. Democracy is a balance of rights, responsibilities, and protections. At its core, democracy cannot exist without protection from oppression.

You needn't guess at the intent of the founders of our nation and framers of our federal constitution. Their vision of democracy and America is laid out in volumes of writings. If you haven't read them, may I suggest the Federalist Papers as a starting point.

Although this is Indiana, it's still America first. Whether it's state government or federal government, whether it's state constitutions or the federal constitution, we live in government that is supposed to be for the people, by the people, of the people and that means all people, not just the ones the majority finds acceptable.

Anonymous said...

Your Morrison and Sec. 23 arguments are superb. I'd commit them to paper and send them to all 100 representatives. I can't hurt.

The IE folks who controlled the 90 minutes alloted our side, did a miserable job. The two business representatives spoke out of the box, about their companies' ability to offer same-sex benefits. That is not threatened by this Amendment. Any such arguments should've bene edited out of their comments. When they shifted to the culture of the state, they hit it out of the park. They were poorly briefed, I assume by IE. Or not briefed, which is even worse.

Mr. Sherfick did a a good job. The stars of our side, though, were the professor you mentioned and Ms. Blomquist from the domestic violence network. As an attorney she succintly demonstrated unintended consequences.

The Amendment also precludes any future legislature, in addition to the hordes of Indiana activist judges, from modifying mistakes made with this horrid language. To correct any unintended consequences, we'd have to Amend again.

This is an important issue, and its fate could've been sealed last fall when Bauer switched his position. IE was asleep at the switch then. Nary a whimper.

IE can't be changed now. But after this session, it needs a thorough house-cleaning. Their performance yesterday was morbid. Watch them claim credit for getting Cummins and Wellpoint to step forward. When I know that's not the case.

Anonymous said...

Great job yesterday! Please share the statistics you just mentioned with every member of the House! (if you haven't already)

Anonymous said...

I certainly second the thought that the probability of the Indiana Supreme Court overturning the Morrision marriage decision of the Court of Appeals, should it ever come up again in a subsequent case, is miniscule, given its underpinnings in the Collins "rational basis" test, which is one of the easiest equal protection analysis test to meet in the nation. In non-legal terms, "it just ain't gonna happen" under Indiana precedent.

Anonymous said...

Great article. Ditto on committing them to paper and sending to the legislators. Minimally to the committee members for sure. Rep. Pelath seemed like he was on the fence.

I get a kick out of people that keep ranting about being given the opportunity to vote on a civil rights issue. In 2000 Alabama went to the polls to vote on removing the interracial marriage ban from their state constitution. The only state left with such a relic. At one point the vote was running 59% for and 41% against. Does anybody see a problem here? Even though the amendment is unconstitutional and cannot be enforced there were STILL a significant percentage of voters heck bent on keeping it in. For those who say interracial marriage is not the same I say Blah Blah Blah.

I also get a kick out of the rant "unelected officials". They are appointed by people Hoosiers vote for. How about the round of judges sent to the Supreme Court bench during the Bush Administration. Was that OK for you Anonymous?

Has anyone heard of the conditions Intersex and Ambiguous Genitalia?

Abiguous Genitalia is a condition where a child is born with various degrees of both male and female genitalias. Sometimes it is so severe that it is not readily apparent what the actual sex of the child is.

Intersex is a different condition here's an excerpt from the ISNA website (source:

"Intersex is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male. For example, a person might be born appearing to be female on the outside, but having mostly male-typical anatomy on the inside. Or a person may be born with genitals that seem to be in-between the usual male and female types—for example, a girl may be born with a noticeably large clitoris, or lacking a vaginal opening, or a boy may be born with a notably small penis, or with a scrotum that is divided so that it has formed more like labia. Or a person may be born with mosaic genetics, so that some of her cells have XX chromosomes and some of them have XY."

Here's what Intersex has to do with the same-sex marriage debate

"People who are proponents of prohibitions against “same sex” marriage think it is easy to figure out who is “same sex” and who is “opposite sex.” Not so. Check out our FAQ called What is intersex? to learn more about how it isn’t clear, in practice, where the category of “male” should end and “intersex” begin, or “intersex” end and “female” begin."

I am no legal scholar but suddenly even paragraph (a) of SJR7 is as vague as paragraph (b).

I would like our legislators to define "male and female". Better yet put the thing on ice rather that rushing it to the polls for a political gain.

Anonymous said...

Also, does anyone know if the issue of Intersex and Ambiguous Genitalia has weighed into the debate withing the Indiana General Assembly?

Edward Fox said...

We really do need to prioritize. Do we want to reprove Mark, or do we want to win this fight. Due to the unceasing efforts of scores, if not hundreds of people, most of whom are anonymous, we are making a difference. There is no doubt in my mind that we are winning, and that the momentum is increasing geometricly, but we cannot do both at the same time. I probably should not quote someone you all hate, but "As you know, you have to go to war with the Army you have, not the Army you want."

Since sports analogies are in the air, I will also offer the greatest compliment ever given a football coach, I believe that it was Bum Phillips referring to Don Shula: "He can take his'un and beat your'un, and he can take you'un, and beat his'un." There is only one thing important at the present moment: to stop the defacing of the Indiana Bill of Rights with manifest inequality. We have to do that with us.

About yesterday: I agree that they had nothing new. Does this surprise you? They have mined the well of bigotry for years; they have twisted truth and dissembled their evil intentions until any push will send the whole pack of lies and hatred tumbling. No they have nothing new; they hate gays, they lust after worldly power and gold; do not stay tuned for further developments.

Our side, on the other hand, never ceases to amaze me. Rather than criticize, and cherish the flaws, let us, as an examiner once said to me, explore the excellencies. Don did a very good job. He addressed the issues and answered the questions. This function improves continually as more questions are identified and more questions are honed.

Cummins and Wellpoint were there. Cummins and Wellpoint stood up in public and said: "Do not do this thing. Do not do this thing, it is bad for business. Do not do this thing, it is wrong for Indiana." Yes I would agree that the fact that it is the first time their representatives have had to defend this proposition in public showed. But do we want to carp about the polish, or rejoice thankfully that we have finally got the tip of the Indiana Economy saying: "This proposed discrimination affects us negatively. Good people do not act this way. Stop it!"?

The people whose minds we want to change, do not respond to arguments. Their minds are made up. As you can tell, if you listen to them, they live in a never-never land where Bible study replaces observation of real life and experience with other people. They will not dwell on the lack of polish of the presentation, and of course next time the presentation will be better. They will be stunned to have to deal with the fact that Cummins and Wellpoint say, publicly, that they are wrong on all counts. They had not counted on people and organizations who are not GLBT caring about justice and equality. They do not care about anybody but themselves, and as I said, they have no knowledge of anybody not like them.

The professor from Purdue was perfect. Perfect casting. Polished delivery and important things to say. Maybe some of it started to sink in.

The representative from RCJC was great. Again he was eloquent--a different tone from the others--with a powerful message about bigotry and equality from a perspective that will give many undecideds, or ignorant people, great pause. Speaking for all the Jewish organizations in Indianapolis, even those who read the Bible in ways similar to the Evangelicals, he said: this is discrimination and it is wrong.

What can I say about the combination punch delivered by the PFLAG moms. PFLAG moms are always the secret weapon, even when they know it is coming, the effect is inspiring. Once again the message and delivery were dead on target, and you could see it hit home.

The wow finish was Kerry Blomquist, of the Indiana Coalition Against Domestic Violence, who simply shut Eric Turner up. I have tried, and it is not easy. Here is another group to say, this will harm Indiana in myriad ways. We like to say that these are unintended consequences: the evidence supports the theory that they are merely hidden consequences; that they are absolutely intended and devoutly desired.

I do not know how much that performance changed the day's outcome. Perhaps Chair Pelath had decided to forgo a vote before the hearing opened. I suspect that the state house is beginning to notice that our movement is gaining members and momentum and that they ignore us at their great peril. In that sense, our imperfections may work to our advantage: before yesterday, corporate Indiana was silent, at least in public; now Cummins and Wellpoint are out. Their representatives are professional. The next time they will be much better prepared, and they will bring their friends.

Now is not the time to give up. Now is not the time to settle old scores within our ranks. Now is not the time to let them off the hook. Write to representatives, call them, visit them. Get everyone you know to do so too. Get people you do not know to do so too. Write to newspapers.

And even if this goes on the ballot in '08, know that we can still win, unless we give up, or fight amongst ourselves. It is amazing how much you can accomplish, if you do not care who gets the credit.

Anonymous said...

Nice post, Ed. Several observations about it, and others:

Rep. Pelath is not undedicded. think he's a House sponsor of this Amendment. That was stated yesterday. I do believe he is rational, and will listen.

He had decided before the hearing to forego a vote. The decision will be made away from the public, in quiet, which is why our lobbyist's credibility is so important.

The formal vote will be taken in committee, but the decision will made by then.

I have contacted legislators and will not stop. I am not optimistic. On that committee, I saw two, maybe three solid "no" votes out of 10. Remember, it passed that same committee 9-1 in 2005. As King Eric so often pointed out.

And if this thing goes to the ballot, Katie bar the door, Ed. We'll be lucky to crack 40%.

I am thankful for the business representatives, and I'm aware of more efforts in that community. These courageous companies are not alone. May their tribe multiply.
Thier message must be uniform: kill this Amendment because it sends the wrong message.

Anonymous said...

"Why do these right-wing fundies always resort to this "let the voters decide" rhetoric when they don't get their way? They claim to have a love of democracy, yet their insistence of tromping the rights of a minority is the polar opposite of democracy."

According to most folks I talk to, this country should be ran on 50%+1. The problem is that libeals are usually the ones to cheer this type of government. They _hate_ the idea that their majority has to have their hands tied by a Constitution or any other rules. Well, this is what happens when you have democracy instead of a strict constitutional republic.