The story notes that the Indiana Conference of the American Association of University Professors has sent a letter to House Speaker Pat Bauer urging him to remove or rewrite the second paragraph of SJR-7. The group's president warns other faculty members will be lost if SJR-7 becomes law. "Universities across the state are going to lose faculty if this happens," predicted Richard Schneirov, president of the group and a history professor at Indiana State University. "This sends the message that Indiana is not a tolerant place."
As If SJR-7 isn't all about plying a social wedge issue for all its value, Sen. Brandt Hershman (R-Wheatfield) responds to the criticism this way: "This is an orchestrated, political attempt to play upon the fears of the gay community as well as the good will of Hoosiers to try and create a fear that simply should not exist," Hershman said." Hershman adds, "I have encouraged those who have tried to spread this false argument about partner benefits to present any kind of legal reasoning based upon Indiana's language, and I'm still waiting," Hershman said. "Their intent is to confuse the issue rather than deal in any factual realm." I guess Sen. Hershman simply dismisses everything he's read on this blog to this point. Remember, this comes from the same man who legislatively tried to block funding to state universities a few years back if they offered DP benefits.
But Hershman also dismisses a Michigan court ruling invalidating that state's DP benefits based upon the different language contained in Michigan's amendment banning same-sex marriages. I like how Hershman cites the best legal minds in the state in support of his contention. "He pointed to interpretations from constitutional law attorney James Bopp Jr., Notre Dame law professors Charles Rice and Gerry Bradley, as well as Attorney General Steve Carter. All said the amendment would not prevent employers from offering the benefits." All four are conservative ideologues who oppose equal rights for gays and lesbians. If it had been up to these four legal scholars, Lawrence v. Texas, which overturned state laws criminalizing sex between consenting adults of the same sex, would have been decided in favor of the government and against gays and lesbians.
The issue is not whether a private employer can offer DP benefits. SJR-7 will not impact those benefits. It is the benefits offered by a government actor which is in question. The fact is the unambiguous language of SJR-7 precludes any Indiana law from being interpreted to require the legal incidents of marriage to be conferred on any unmarried couple of group. The proponents first contend this provision applies only to courts. Since when did we limit the application of our state constitution to judges only? The fact is every member of the executive branch and every member of the legislative branch takes an oath to uphold the constitution when they are sworn into office. Sure, the other branches could ignore the provision and enact executive orders or state statutes in conflict with the limitation imposed by SJR-7's second paragraph. But if it is challenged in the courts, the courts are bound by the unambiguous language of SJR-7: "This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups." If a university's board of trustees requires the university to offer DP benefits, are they not construing an Indiana law to require the legal incidents of marriage be conferred upon an unmarried couple by giving legal recognition to a same-sex relationship?
UPDATE: The Indiana Law Blog has much more on the topic here. Indiana Law Blog editor Marcia Oddi offers this opinion on the debate over the second paragraph:
What does all this mean? What it means to me is: The fact that people disagree about what the proposed language means should be more than enough to keep that language out of the Constitution, for heavens sake!
35 comments:
Superb post.
You omitted that Speaker Bauer basically parroted the good senator's remarks by saying he hadn't heard anything to the contrary, either.
Is ANYONE talking to Bauer? He's turning into a solid traitor.
>I guess Sen. Hershman simply dismisses everything he's read on this blog to this point.
What makes you think he's reading anything on this site?
Pretty simple issue here. He's asked for legal reasoning on why the 2nd sentence would prevent IU, the State and others from offering partner benefits. So why can't you provide that?
And by the way, a constant reference to Michigan does not equate to legal reasoning. That's just rhetoric that, as Hershman says, is designed to play on people's fears.
>I guess Sen. Hershman simply dismisses everything he's read on this blog to this point.
What makes you think he's reading anything on this site?
Pretty simple issue here. He's asked for legal reasoning on why the 2nd sentence would prevent IU, the State and others from offering partner benefits. So why can't you provide that?
And by the way, a constant reference to Michigan does not equate to legal reasoning. That's just rhetoric that, as Hershman says, is designed to play on people's fears.
(a) Marriage in Indiana consists only of the union of one man and one woman.
(b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
It might help your analysis if you first look up the definition of "require." It's a common word that you can find in any dictionary.
Once you figure that out, then the word's "may not be construed to REQUIRE" should be equally easy to figure out.
I can assume he reads this blog because he called me up at home to take issue with something I wrote about on this very topic. Typically an attorney will cite case law in support of his/her position--the Michigan case is quite on point here. If you look at the case law involving same-sex marriage cases, each state court decision has cited another state court's decision to explain its reasoning. The fact is the proponents offer no case law to support their interpretation of the amendment. The burden is on them to prove the amendment is both necessary and to explain its effect.
I have wondered why the Star, this blog and others have never actually published the Michigan language but prefer instead to refer to it in vague terms. Now I know why! Here's the Michigan language:
Sec. 25. To secure and preserve the benefits of marriage for our society and for future
generations of children, the union of one man and one woman in marriage shall be the only
agreement recognized as a marriage or similar union for any purpose.
This isn't even close to the language proposed in Indiana! Sentence (b) in Indiana says the legal incidents of marriage cannot be REQUIRED. This Michigan language says that nothing other than marriage between one man and one woman may be recognized for ANY PURPOSE.
I think it's time to stop the vague references to Michigan. Of course, that wouldn't leave you with much to argue now, would it?
>The burden is on them (the amendment proponents) to prove the amendment is both necessary and to explain its effect.
They have done so already. You disagree. So now it's your burden to prove their answers wrong. You have not done so.
"Pretty simple issue here. He's asked for legal reasoning on why the 2nd sentence would prevent IU, the State and others from offering partner benefits. So why can't you provide that?"
Not simple at all. Hershman has already attempted to turn over University domestic partnership benefits in the past.
If the amendment passes as is, if his next attempt is successful, courts could interpret these benefits as an "incident of marriage".
It's not unconstitutional if it is written in the constitution. It may not stop universities from offering these benefits but it could very well tie the courts hands when Hershman challenges those benefits and we all know that he will.
The same argument was used in Michigan and it is being used now.
The answer to some of the comments, including the one on "require", is that if the state or other governmental actor were to pass a law/ordinance/rule establishing and perhaps funding("requiring")domestic partnership benefits SJR-7 would forbid it from being interpreted (by judges or otherwise) in that manner. That would have the same effect as saying such a measure was invalid. If Hershman would have left out "or any other Indiana law", as was later done with the Federal Marriage Amendment, that difficulty would have gone way. But he knows what he's doing...he ignored and refused to use what had been called a "clarifying change' in the FMA he borrowed from to write SJR-7. So one is left to conclude he is engaging in doubletalk.
I think the double talk rests a lot more on the opponent side. Consider:
1) 9:50 and 10:10 are now admitting that the amendment itself will not end partner benefits. Rather, it is the possibility that a future law could do that. That is not the same.
2) While earlier arguments by the opponents have tried to downplay the role of courts in all of this (pointing out, for example, that Indiana already has a law defining marriage), it is clear from #1, above, that you want the courts to stay active in this issue.
3) The constant references to Michigan and the impact of case law really is an effort to distract from the facts. As has finally been shown in this discussion, the Michigan amendment has almost no similarity AT ALL to the Indiana proposal.
Yep, there sure is a lot of double talk in this debate. And the people slinging accusations at Hershman are demonstrating the worst of that.
"Yep, there sure is a lot of double talk in this debate. And the people slinging accusations at Hershman are demonstrating the worst of that."
So 10:27, why is part B needed in this amendment? Please explain the purpose of that second sentence for us.
10:27. You appear to be an apologist for Senator Hershman and/or pehaps you don't understand my point about his ignoring the changes made in the FMA that would have made the second part of SJR-7 "clear and unambigous". Do you know why he ignored the change? Did his folks goof and accidentally use the old version?
Part (b) is needed in order to keep the courts from redefining "marriage." It is also needed to keep the courts from REQUIRING marriage-type benefits for other groups of people.
Herein lies one of the biggest hypocricies of the opponents' arguments. They keep pointing to existing laws to say that this amendment is not needed, but they oppose any restrictions that would keep the courts from redefining those existing laws.
Please note that the three "legal minds" the good Senator consulted (you know, to be "fair") are ultra-conservative. Rice and Bopp especially are far, far right. Their legal opinions are totally tainted by their religious and social views, somewhere to the right of Attila the Hun.
Okay, Tracy. You've proven your ability to clasify people and to call them names. (That, alone, is an amazing irony, given the topic.) But where's your counter-argument? If your best argument is to call someone "ultra-conservative" and akin to "Atilla the Hun," then why is it not equally relevant to dismiss the opinions of opponents because they are "fags" and "queers?"
Anonymous at 10:58: You know of course that the basic argument over Section (b) is whether just the courts are restrained, as proponents argue, or whether both the courts AND the legislature are restrained, as opponents argue. SJR-7 was copied almost word-for-word from the Federal Marriage Amendment. Because many felt state legislatures ought not to be restricted, it got changed by deleting the reference to "state law" but still restricting judges. Representative Musgrave and Senator Allard, main sponsors of the FMA, said that this clarifying change made it "clear and unambiguous" that state legislatures retained their authority. Senator Hershman could have picked up that new language, and take out "or any other Indiana law" from SJR-7. The fact that he did not says he wanted to also restrict the legislature. It would be a simple matter do take "or other Indiana law" back out so he's fully in agreement with his national conservative friends. The fact that he remains silent and doesn't means he's after only one thing: the measure on the ballot in November 2008. If you have contrary explanation please honor us with it.
Don,
I have not seen any "apologies" for Sen. Hershman. I don't know the man or "his folks." But given the non-stop attempts to redefine marriage in the courts, why should we not expect that similar efforts would be made to redefine marriage in statute? Or specific to part (b), to redefine who must be REQUIRED to be given marriage-type benefits?
Of course, why else would you want the words, "or any other Indiana law," removed? While I don't know Hershman, I doubt from what I do know of him that he is too stupid to see through that!
Anonymous at 11:17: Now I think from your last comment that I understand your puzzlement at my "doubletalk" comment. You say "why should we not expect that similar efforts would be made to redefine marriage in statute?" But the rub is that the national FMA sponsors described their change as making sure state legislatures COULD STILL do such things. And more important, Senator Hershman insists that this would remain the case in Indiana under SJR-7 without the change. He's being self-contradictory, and leading many to believe he really doesn't want the General Assembly to retain power to, yes, REQUIRE civil unions, etc., even though he says his measure would still let the General Assembly do that.
yet the basic question remains:
Why is the government attempting to define marriage by Amendment, that it has already defined by statute?
And, additionally, why did the government attempting to place a religious definition of marriage, by statute or context, upon me? I thought the Constitution (both federal and state) expressly forbade that. I do not seek nor welcome that intrusion of marriage definitions into my life.
9:05, the "constant references" to Michigan's experience, and that of other states, it the chief defense or strategy taught in the first year of law schools nationwide. Ergo "precedence." Wake up.
The Michigan experience is incomplete. But its implications are scary beyond belief.
And, for the record, Sen. Hershman has been presented specific fears regarding the second clause. He simply chooses to ignore them.
If ignorance is bliss, Hershman must be the happiest man in the world. But that alone will not win this battle for us.
We must provide solid stories of the law's potential influence on us, our citizenship, and our ability to live, pay taxes and educate ourselves in this state.
In this political environment, until and unless we make this an economic argument, we will not win. We may not even win if economics dominates the argument.
Hatefulness in the defense of liberty is no virtue.
11:08, you missed the point of Tracy's comment. Hershman's "experts" are Christian-right warriors who are in no way unbiased in their opinions. Referring to them as "to the right of Atila the Hun" did not negate his assertion.
Signed, Jeff the Queer Fag
9:21,
Good job posting facts. The way I read the second part of SJR-7, it is just saying that no judge could allow gays/lesbians using some other part of the Indiana Constitution (such as an equal protection clause or something similar). I don't see how university benefits are being harmed? The university was not forced by a judge using any Indiana law or the state constitution. The trustees just gave the benefits.
"If the amendment passes as is, if his next attempt is successful, courts could interpret these benefits as an "incident of marriage"."
Where does the state constitution force universities to provide DP benefits? What Indiana law forces them to provide benefits? Don't forget the first part of the amendment: "This Constitution or any other Indiana law may not be construed to require..." Key words are "Constitution" and "other Indiana law." Neither of which deal with DP benefits offered in this state.
"So 10:27, why is part B needed in this amendment? Please explain the purpose of that second sentence for us."
Simple. If gay marriage reaches the Indiana courts, any judge could rule that the Constitution is vauge if it has a civil rights or equal protection clause anywhere in the document. The judge(s) themselves could rule one way or another. For example, I could argue that the constitution limits government powers, therefore marriage should be allowed for everyone and not have government limitations. Another judge could rule that it was the will of the people to ban gay marriage due to the passage of the previous law.
No, Jeff, I didn't miss Tracy's points at all. She had no point, so she resorted to name calling.
Similarly, Anon 1:14 has no point. The reason for the amendment has been explained ad nauseum - to keep the courts from redefining marriage. The existence of a law defining marriage does not mean much when activist courts are out there redefining common language. Indeed, the opponents of SJR 7 realize this and are opposed to part (b) of the amendment because it would keep the courts from jumping in.
I sure hope that Anon 1:14 is not a lawyer because laws can only have precedence if they say something similar. The Michigan Constitution and Indiana's proposed amendment do not say anything close to the same thing. So where is the precedence? If Michigan passes a law creating a 7% sales tax, does that set a precedence requiring Indiana's sales tax to go up to 7%? Of course not. In your own words, wake up!
And no, I doubt that Hershman is ignoring the arguments that are being made against SJR 7. I think there's a much better chance that he simply disagrees with those arguments. Imagine that! The difference seems be that Hershman actually gives backup for his arguments. Where are yours?
Anon 1:14 is right about one thing. You can only win this through stories. Sometimes that's the only way to distract from the lack of any legal arguments. (Don't they also teach that in law school?)
And yes, "hatefulness" is an ugly thing. Perhaps Anon 1:14 and others in debate will someday understand that.
anon 1:49, your suggestion a court could hold a provision of the Indiana constitution void because it is internally in conflict with another provision is simply untenable, particularly when the provision creating the internal conflict was later adopted. The fact is the first paragraph of SJR-7 defining marriage is all that is necessary if you truly want to ban same-sex marriages and nothing more. A court could not find a right for same-sex marriages within the Indiana constitution if that first paragraph is adopted. Even without it, the Court of Appeals in Morrison v. Sadler made it clear equal protection under Article 1, Section 23 of the state constitution does not extend to the right of same-sex couples to marry. That decision makes it clear a plaintiff would never prevail under Indiana law on an equal protection claim based on the state's constitution. The proponents of SJR-7 simply have offered no rationale for why the second paragraph is needed, unless they want us to believe a court could simply ignore the state constitutional definition of marriage, which is already buttressed by the state's Defense of Marriage Act defining marriage as between one man and one woman.
Anonymous 11:08 said...
>Okay, Tracy. You've proven your ability to clasify people and to call them names. (That, alone, is an amazing irony, given the topic.) But where's your counter-argument?
First, I didn't call anyone "names". I pointed out that their ideology is right-wing, something neither would argue. Equating that with using homophobic epithets is absurd.
My counter-argument is, in fact, a conservative one (as I am a Burkeian conservative): Amending the constitution should only occur when it is the very last resort to enact whatever law is being sought. In addition, the constitution should NEVER be amended in a way that violates the larger purposes of that constitution. The Indiana constitution prohibits laws which create separate classes of persons under the law, with rights conferred upon one class and not the other. This amendment is not necessary to ban marriage between same sex persons, as the law does that now. This amendment does in fact violate the larger purposes of the constitution by denying one class of citizens the rights conferred upon another.
Damn straight, Tracy! (no pun intended)
And I noticed you dind't correct the anonymous poster's mistaken identity of your gender.
Tracy is a valued citizen of the local gay community. His common-sense argument is among the best I've heard.
If the Amendment passes, I intend to ask my representatives to immediately draft similar Amendments dealing with already-illegal acts: robbery, rape, murder, embezzlement...we'll have a field day of Amendments. And I'll demand that the time committed to these Amendments is at least equal to the time spent thus far on the Marriage issue.
The proponents have no sense of proportion, and, judging by some of the details of their own lives, no true love for the "sanctity of marriage." Their efforts are purely political and hateful. And, to top it all off, they proport to know what'e best for all of us, based on their own Judeo-Christian values of marriage. Both our Constitutions exempt us from the imposition of any group's religious values on the masses.
They ought to spend more time reading the Good Book from which they and their ilk selectively lift quotes.
Let's see if I understand this correctly, Tracy:
In your opinion, it is unconstitutional to ban gay marriages. That's what you mean, I suppose, when you say, "The Indiana constitution prohibits laws which create separate classes of persons under the law, with rights conferred upon one class and not the other." (I'll set aside, for now, my argument that you are perfectly free to marry; but what you really mean is that you want to redefine marriage.)
Yet, you also argue that current statute already forbids gay marriage and that no amendment is needed to keep it that way.
If I understand you correctly, then you have just given the best explanation possible of why an amendment is needed. Nothing more need be said.
anon 1:49, your suggestion a court could hold a provision of the Indiana constitution void because it is internally in conflict with another provision is simply untenable, particularly when the provision creating the internal conflict was later adopted. The fact is the first paragraph of SJR-7 defining marriage is all that is necessary if you truly want to ban same-sex marriages and nothing more. A court could not find a right for same-sex marriages within the Indiana constitution if that first paragraph is adopted.
I understand your concept here. I was thinking more deeper than what I wrote and should have been more specific all the while I totally forgot about the first part. The obvious goal of this amendment is to keep gays/lesbians from getting married. It is to prevent them from having state/government rights as well. From my point of view, you are correct that a judge could never allow gay "Marriage." Without the second part, isn't it possible that if Indiana had a civil rights or equal protection amendment (I don't even know if we do) that some activist judge could make a ruling that would demand the state to recoginze the rights of two homosexuals? Remember, as long as it was not called "Marriage", it would not violate the first part. Maybe this was the reason for part two?
Even without it, the Court of Appeals in Morrison v. Sadler made it clear equal protection under Article 1, Section 23 of the state constitution does not extend to the right of same-sex couples to marry. That decision makes it clear a plaintiff would never prevail under Indiana law on an equal protection claim based on the state's constitution.
Posted the last message a little early. As far as the above, even you know that court rulings change with time. If we just had part one, that says _nothing_ about civil unions, just defines one word: Marriage, then what would stop a future gay couple from suing for at least the same rights in the future? They could argue that equal protection means that they should get a Certificate of Civil Union since they can't get a Certificate of Marriage.
anon, based on your last two posts, it is clear you want to do more than bar same-sex marriages, which has been our entire point about those defending the second paragraph. The rational basis test Indiana courts have used in equal protection cases has remained unchanged for many years. Anyone familiar with Indiana jurisprudence in this area knows gay couples don't stand a prayer in Indiana, with or without the constitutional prohibition, on the marriage issue. The goal is to make sure this amendment is not used to slam the door completely on the recognition of any rights short of marriage by a more enlightened legislature at some point in the future. If the amendment is adopted with this second paragraph, that door will be shut--just as its proponents intend.
Gary, he's been spending too much time at the Logic Table a/k/a IndyUnderground. Drinking the bong water again.
He'll come out of it by, oh, about Wednesday.
Rambling rants claiming to have won the argument, when he really only blurs it.
Yep. Sounds about right. I'm betting now he's got a fearsome case of the munchies, and in a little while, he'll crawl in the corner and huddle up in a ball, highly suspicious of anyone who tries to befriend him.
anon, based on your last two posts, it is clear you want to do more than bar same-sex marriages, which has been our entire point about those defending the second paragraph.
You don't know me or anything about me. My question is just based upon what is stated. It is not my political belief. My personal belief is that governments should only be issuing civil unions and only for the purpose of medical care, nothing more. Anything else can be done via Payable on Death, POA, wills, trusts, etc..
I totally disagree with your idea that past court cases are basically written in stone. It has already been shown that younger people are ok with gay marriage. Maybe not call it marriage, but civil unions for sure. I went to a smaller suburban high school. I was shocked to see they actually have a gay club now. Not shocked as in I was sickened, just shocked because that would have never happened when I was in school (early to mid-90s). I never felt that gays were disliked during high school, just coming out of the closet was not as big (at least in high school). On that basis, I do think the anti-gay marriage at any cost folks do understand what the future holds. Thus they want to really put the entire thing in stone via an amendment. Also remember that it is not the end of the world forever if the amendment is adopted. As the very anti-gay folks die off and those younger, more open folks take over, you could easily see the amendment over turned.
History is full of ridiculous Amendments passed, then overturned later. Prohibition comes to mind.
That doesn't mean we should or have to live through this rampant stupidity again.
The Amendment is hateful. Period. It shuts out, rather than takes in. All the while trying to espouse a particular religion's view of marriage which is, in itself, unconstitutional.
Quiz the proponents on the origin of their belief regarding santity of marriage. Hang them on their christian coattails, which is sad, but still, unconstitutional.
We are not, after all, a nation free of all religion except Christianity.
5:44:
Please, there is a difference between disagreeing with an amendment and that amendment being hateful! Don't ignore the distinction. Debate and honest discussion should not be shut down by name calling and the tactics of intimidation.
Defining marriage as the union of a man and a woman would not deny homosexuals the basic civil rights accorded other citizens. Nowhere in the the U.S or Indiana Bill of Rights or in any legislation proceeding from them are homosexuals excluded from the rights enjoyed by all citizens—including the right to marry.
However, no citizen has the unrestricted right to marry whoever they want. A parent cannot marry their child (even if he or she is of age), two or more spouses, or the husband or wife if another person.
Such restrictions are based upon the accumulated wisdom not only of Western civilization but also of societies and cultures around the world for millennia.
It is the duty of legislators to evaluate the right legislation and constitutional amendments needed to correct some wrong or injustice, or promote some positive or good result.
Many of the same people who wish to exclude religiously informed moral arguments from the debate about marriage are little
troubled by the use of moral and religious arguments when discussing other issues such as racial discrimination, capital punishment, or the war in Iraq.
11:12, you kinda had me until that last paragraph.
You see, I don't want the governmemnt telling me what a marriage certificate is or isn't, or whom it should include or exclude.
The current legal definition of marriage includes only a man and a woman. I'm not pleased baout that, but I'm not going to lie down in front of a bulldozer about it. The DOMA was passed over my objections ten years or so ago. It's narrow, hateful, pandering in nature, and exclusive.
Elevating that narrow view to Constituional status is ridiculous. It is hateful to do so, because the motives of those pursuing it, are strictly based on their religious beliefs. If they can show me other legitimate reasons, other than "protecting the sanctity" of marriage, I'll listen. So far, zippo.
But thanks for trying. Your logic stops at the end of your nose.
"It is hateful to do so, because the motives of those pursuing it, are strictly based on their religious beliefs."
So if someone has a "religious belief", it is hateful? What if my religious belief is that it is wrong to kill...is that hateful? What about if my religious is that it is wrong to lie, commit adultry, steal, or "bear false witness about your neighbor" (aka false reporting)?
Your ability to label legislation as wrong based solely on the fact that it coincides with a religious tenet is not only illogical, but it is also religious discrimination.
You wage your war of ideas, let those on the other side wage their war of ideas, and in the end the truth should result. Try reading some of Tom Jefferson's writings and you may discover that this is exactly what our founding fathers had in mind when they crafted the framework for our nation.
BTW, there are plenty of reasons based on good public policy to not have state recognition of homosexual marriage...some of these have been discussed argumentum ad nauseam.
Go ahead and claim you are ignorant about any other reasons...I think wwe all know better.
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