Remember that second paragraph of SJR-7 which Jim Bopp, Eric Miller, Micah Clark et al. assured Indiana lawmakers
would have no impact on such things as domestic partner benefits? Remember how they dismissed lower court decisions in states like Ohio and Michigan which interpreted this surplusage language in same-sex marriage amendments as having real consequences? The Michigan Supreme Court
has ruled that this language does indeed have real consequences. It ruled that it
prohibits state universities and local governments from offering unmarried employees domestic partner benefits. The language in question reads:
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.
It's not all that different from the language in the second paragraph of SJR-7. It reads:
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.
You can read the opinion
here. A big hat tip to the Indiana Law Blog, which has more
here.
All of them - Micah Clark, Eric Miller, and the rest of their evangelical jihadists knew it would have these consequences. This is one of the best political tactics a faction can employ - to mask the effect of what they are passing until it is firmly embedding in the Constitution.
ReplyDeleteAs Doug Masson and others have pointed out, Indiana courts give little, in any weight, to what proponents of measures claimed before enactment, when interpreting them afterwards. So the possibility of successful "bait and switch" by Clark, Miller, Smith et al remains very much alive in the future. Lawmakers considering such proposals need to be constantly reminded of this, and if they intend that whatever they may have before them in the future is to mean what proponents say it means, they should find a way to say that in the text of an amendment itself. Then the courts would have to take them at their word.
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