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.