On substance the amendment offers a simple definition of marriage in 14 words. Then in a second sentence, it says Indiana law cannot be construed to create marriage-like arrangements. It is this second sentence of 29 words that is the focus of this small group of intensely motivated activists in this round of debates, because they know they cannot stop the measure on its merits of protecting marriage.
They claim, looking at the very different language of Ohio and Michigan amendments where the intent has been litigated, that Indiana could complicate life for private businesses, public universities, and others. But nothing is further from the truth. Two groups of people in our society "construe." The first group makes wire or other products as they draw liquids out into thin solid strands. The whole magnet-wire industry was birthed in Fort Wayne, so Indiana knows a lot about construing in this manufacturing context. The second group who construes is judges, drawing or deriving legislative intent from the literal language of a law.
So the second sentence is simply designed to prevent the courts from creating something the legislature and the voters never intended. The amendment's authors and supporters have testified to this intent repeatedly.
Unwittingly, Smith makes the very argument folks like myself have been making about the so-called unintended consequences of SJR-7, which are not at all unintended by folks like Smith, Eric Miller and Jim Bopp. Proponents want us to believe SJR-7 does nothing more than limit a "marriage" between one man and one woman. Smith concedes this is accomplished with paragraph one: "[it] offers a simple definition of marriage in 14 words." He then concedes the second paragraph does more than just that: "it says Indiana law cannot be construed to create marriage-like arrangements." If the first paragraph limits marriage to one man and one woman, then it begs the question of what exactly are these other "marriage-like arrangements" Smith and others fear the courts will recognize? Civil unions? Domestic partner benefits? Inheritance rights? Adoption rights?
We're already witnessing the handiwork of Sen. Brandt Hershman (R-Wheatfield) in his stealth-like attempt to rewrite Indiana's domestic violence statutes to avoid the unintended consequences of SJR-7 in SB 65. Indiana law currently treats unmarried couples living together as spouses as if they were legally married for purposes of the protections offered under our state's domestic violence laws. Realizing the impact SJR-7 will have on those laws, Hershman's legislation will redefine persons protected by those laws as either "family" or "household members".
To Smith's way of thinking the second paragraph will only "prevent the courts from creating something the legislature and the voters never intended." But implicitly it also takes away power from the legislature to offer any "marriage-like arrangements". If the legislature enacted any law pertaining to civil unions, domestic partner benefits, inheritance rights, hospital visitation rights, etc. which would benefit same-sex couples in the same manner as such laws benefit married couples, an Indiana court would be bound by the plain language of the second paragraph of SJR-7, which would prohibit it from construing any law as conferring any legal incident of marriage to any unmarried couple or group. This will most assuredly lead to the striking down of domestic partner benefits currently offered by our two leading public universities, IU and Purdue, and prevent the legislature from overturning such an adverse ruling by statutory enactment.
In opposing the amendment, Chris Douglas writes, "The proposed language contains undefined terms, is vague, and even its authors are at odds over what it means or will do." I must respectfully disagree with Douglas. There is nothing vague about the terms contained in SJR-7 or what they mean. I don't think there is any disagreement among the proponents of SJR-7 about what it does. They all freely admitted it would prevent civil unions from ever being recognized in Indiana until the debate shifted to the second paragraph of SJR-7. Then they conveniently omitted any mention of civil unions; however, Smith is much less guarded in that respect. "Marriage-like arrangements", as he describes them, unmistakably refers to civil unions. Douglas is, however, absolutely right in saying, "This poorly written measure is not the kind that should be placed in our great Indiana Constitution."