Sunday, March 04, 2007

Star Features Faceoff On SJR-7

The Star editorial page today features a faceoff between the Indiana Family Institute's Curt Smith and Chris Douglas. What struck me, in particular, was how little lacking in substance Smith's opinion piece was in terms of explaining why the amendment's passage is necessary. He begins by telling us how popular the amendment is, and then he devotes the rest of the column to defending the second paragraph of SJR-7. "So it is not the measure itself that is controversial, but rather the ad hominem attacks and inflammatory tactics of its vocal, activist detractors who draw such attention," he writes. Explaining the second paragraph, Smith says:

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."


Anonymous said...

Your comments are right on the mark in almost all ways, but I would respectfully disagree with your own respectful disagreement with Chris's comment that "The proposed language contains undefined terms, is vague, and even its authors are at odds over what it means or will do." The term "legal incidents of marriage" is far from defined, and the term "shall not be construed" itself raises a host of questions about judicial versus legislative authority. The comment concerning the divergence of views of the authors stems from the fact that SJR-7 is was a cut and paste job from the Federal Marriage Amendment, and its authors and sponsors, one of whom was Notre Dame Law Professor Gerald V. Bradley, who Brant Hershman says helped him compose SJR-7. Items in the New York Times, Washington Post, and in the blogs in 2004 talk about a great deal if disagreement over the language within the conservative authoring community. More about this is going to be surfacing in the next few days. While it may serve both proponents and opponents to claim the language is perfectly clear (good or bad), the question remains as to whether, if there is any reasonable doubt what the language means, it ought not go go into our Indiana Constitution.

Anonymous said...

I already threw the paper away...but correct me if I'm wrong:

I read this page twice. I didn't see the exact wording of the proposed Amendment anywhere on the page.

If so, it's typical Star half-effort.

Anonymous said...

Anonymous: The Star didn't quote the text itself. They did an almost identical paraphrase that ended up leaving out the words "This Constitution". Yes, a half-effort in that no reporters seem serious into digging into the "interpretation" claims and background of what Hershman and others are merely proclaiming as settled matters because of "legal expert" opinion. In that sense, a "half-effort" as Anonymous says.

Anonymous said...

Three things about the articles stood out to me:

1) While some in the GLBT community have tried in recent weeks to focus on the 2nd sentence, while also suggesting that the marriage issue in the 1st sentence was not as big a problem, Chris Douglas was quite honest in talking mostly about the marriage issue. While you and I completely disagree on this issue, thank you Chris for being honest.

2) Another argument made by the GLBT community is that the amendment is not needed because state law already defines marriage. And yet, Chris Douglas argues that denying marriage between same-sex couples is unconstitutional. If he is correct, then a consitutional amendment is absolutely necessary because the law which the GLBT community points to should, apparently, be overturned, according to Chris's argument. Indeed, that's the whole reason these constitutional amendments are so popular right now.

3) Unfortunately, Chris failed again to describe how this Constitutional amendment would deny the rights of anyone to get married. You can still get married. You just have to marry someone of the opposite sex. Of course, that's what "marriage" has always entailed. So what Chris is really arguing is that some set of people, like the courts, ought to have the right to change definitions of common words. Meanwhile, there isn't now and there won't be after this amendment passes, a single person in this entire state who will be forbidden from getting married.

Anonymous said...

To paraphrase the speech of a wise Texas legislator:

Here's what SJR7 does not do: It does not give one Indiana citizen meaningful tax relief. It does not reform or fully fund our education system. It does not restore one child to Indiana's Children's Health Insurance Program. It does not put one dime into raising Hoosier's access to health care. It does not protect one elderly person. I does not save from harm one mentally or physically challenged person in the state. It won’t result in the adoption of one more kid. In fact, it does not even do anything to protect one marriage.

Moreover, SJR7 doesn’t do one thing to generate bio-tech discoveries, initiate patents or inventions, generate manufacturing opportunities, create markets or wealth, put more money in people’s pockets, increase investor return, or make the state more attractive for the purpose of locating a business.

The net result of SJR7 is to make Indiana a great deal less desirable to talented individuals and progressive companies who rely upon creative business talent (regardless of who they sleep with)to generate income and profit producing innovations. The whole idea is really a very, very bad proposition for business.

AdvanceIndiana, you've pointed this out in prior postings. I wish more people had been paying attention.

I can't believe that our Governor, whose campaign promise was to increase the personal income of every citizen of the state, can stand by and allow his economic program (albeit struggling) to be undermined by the "ad hominem attacks and inflammatory tactics of vocal, activist detractors" such as Smith, Miller, & Bopp.

In all the rhretoric spouted by the proponents of SJR7, there is an appallling lack of attention paid to the economic consequences of the resolution. Hopefully, some members of Indiana's House of Representatives will see fit to look into the economics of the resolution.

Mitch, if you read this blog, please remember that you kicked Miller's ass up between his shoulder blades. Don't sit on the sidelines and let Smith, Miller and Bopp take the game away from you. Intellectually, it's not worthy of you.

David Johnson, as leader of Bio-Crossroads, why aren't you saying that SJR7 is bad for business. When you were at B&D you wouldn't let your firm enact such a boneheaded, anti-economic policy.

Jiske, McRobbie - did you see this article by Ketzenberger this morning, "IU, Purdue outclassed on patent revenue -- for now". Are you content to stay silent and let us be outpaced by the states who get the economics of it all. Or, are you worried you wont' get your next building.

Cummins, Lilly get in the game. This hurts you too - and you know it.