Friday, March 30, 2007

Emmis Communications Announces Opposition To SJR-7

The growing chorus of Indiana businesses voicing opposition to SJR-7 grew again today. Indianapolis-based Emmis Communications is the latest to oppose the discriminatory amendment. The Star's Bill Ruthhart quotes from a letter CEO Jeff Smulyman sent to House Speaker Pat Bauer:

"We believe the passage of this constitutional amendment will hurt our ability to recruit and retain a diverse workforce, and creates the damaging impression that we are not a welcoming and inclusive community," wrote Smulyan, a Democrat. "I add Emmis' voice to the growing chorus of Indiana-based employers urging you to reject this proposal."

The South Bend Tribune also editorialized against the amendment after the American Family Association of Indiana took out a full-page ad in the newspaper earlier this week accusing Speaker Bauer of playing politics with the amendment. The reality is that it's the religious right which has been playing politics with this cultural issue from its very inception.

Woodlan School Officials Fire Journalism Teacher

Amy Sorrell, the journalism teacher who advised a student newspaper which published 10th-grader Megan Chase's editorial promoting gay tolerance, has been told by Woodlan Junior-Senior High School officials her contract is being terminated. The Fort Wayne Journal-Gazette reports:

The Woodlan Junior-Senior High School journalism teacher who sparked a First Amendment fight in East Allen County Schools has been told her contract will be terminated.

Amy Sorrell received a letter from the school district Thursday saying that when the school board meets May 1 it will consider firing her for insubordination, neglect of duty, substantial inability to perform teaching duties and other reasons in the best interest of the school district. Sorrell was placed on paid leave March 19 while the district investigated allegations that could lead to her termination.

Sorrell didn’t find out what the district was investigating until she received the letter Thursday. The letter details seven reasons for her termination, including not following directives from Principal Ed Yoder regarding the editorial policy of the newspaper, altering the newspaper class curriculum, neglecting the yearbook program and engaging in a campaign placing EACS and Yoder in a false light by implying they are intolerant.

“Your efforts to cast Principal Yoder and EACS in a false light have hindered the efficient operation and educational mission of EACS and Woodlan Junior-Senior High School,” the letter stated.

It went on to say: “The journalism program at Woodlan Junior-Senior High School would be better served by replacing you with a teacher willing to work collaboratively with, not in conflict with, the building administrator in carrying out the prior review curriculum requirement for school sponsored publications.”

Jack Groch, the Indiana State Teachers Association representative for East Allen, said Sorrell will ask for a public hearing, which she is allowed to request, to show the community how EACS administrators treat teachers.

“I think the charges are trumped up,” Groch said.

Sorrell said she has difficulty accepting the reasons outlined in the letter, particularly the charge that she changed the curriculum without authorization. This month, instead of working on publishing a newspaper, the students studied court cases related to the First Amendment.

“I just have a really hard time accepting that First Amendment cases are against the curriculum,” she said.

The district is confident in its decision, said Andy Melin, assistant superintendent for secondary education and technology.

“There is no way after all of the time and the effort that has gone into this matter that if the administrative team did not fully believe that this was the appropriate action, it would not be taken,” he said.

The controversy over the student newspaper at Woodlan began in January when the Tomahawk printed an opinion piece by sophomore Megan Chase questioning people who believe homosexuality is wrong.

Shortly after the newspaper was distributed, Yoder told Sorrell and the newspaper staff that he needed to sign off on all future editions of the newspaper. He also issued Sorrell a written warning for insubordination and not carrying out her responsibilities as a teacher for exposing Woodlan students to inappropriate material.

Chase was surprised Thursday to hear that Sorrell was being fired.

“It’s not fair. She never did anything wrong,” she said. “I didn’t think they would actually do it.” She expects many students and other supporters to attend the public hearing to fight for Sorrell. Last week, dozens of people attended an EACS board meeting to support Sorrell, but they weren’t allowed to speak about the issue.

Sorrell said having her hearing in public is best for her.

“Clearly the public is supporting me,” she said.

And the newspaper class at Woodlan isn’t the same without Sorrell, Chase said.

“It’s not fun,” she said. “With her getting fired, I don’t think I will do it next year.”

Former editor Cortney Carpenter, a junior, left the newspaper when Sorrell was placed on leave. She wasn’t surprised to hear the latest development.

“I’m not shocked or anything because I figured that’s what would happen. But I thought they could work it out and get over it pretty much,” she said.

Carpenter said she doesn’t believe the accusations against Sorrell. Yoder knew the policy the newspaper was operating under most of the year and didn’t have a problem with it until recently, and both the newspaper and yearbook classes seemed to be working well, she said.

“We were putting out a really good paper,” Carpenter said. “It’s really going to suffer.

Journalism is going to go down. It’s not going to be as great as it had been when she was there. The school is really going to hurt from that.”

I think the school administrator's decision can be summed up in this petty sentence administrators included in her termination letter: “Your efforts to cast Principal Yoder and EACS in a false light have hindered the efficient operation and educational mission of EACS and Woodlan Junior-Senior High School.” Principal Yoder has nobody to blame for the bad publicity he's gotten out of this case than his own over-reactive, homophobic response to Chase's editorial.

Attorney General Carter Wants Answers: Casino Netted Attorneys $16 Million

Indiana Attorney General Steve Carter (R) is trying to find answers as to why politically-connected attorneys Thomas Cappas and Michael Pannos were paid $16 million in casino revenues as a result of a deal brokered by a former East Chicago mayor. The Northwest Indiana Times' Bill Dolan reports:

The state is demanding two politically connected lawyers account for $16 million they received in casino money under a deal brokered during the Pastrick administration.

Indiana Attorney General Steve Carter alleges in a lawsuit his office filed Thursday in Marion Superior Court in Indianapolis that Thomas Cappas and Michael Pannos "and their families have been unjustly enriched."

Carter's office demands Cappas and Pannos detail what they have done with the money but isn't alleging Cappas or Pannos have done anything illegal.

Carter said this city's casino has paid the millions to Cappas and Pannos during the last decade under an agreement designed to leverage economic development in this depressed steel city, producing few results.

"I've never seen the evidence. I don't know of anyone else who has. I can't find any public records that have. We've asked for it, and we've been stonewalled," Carter told The Times.J. Lee McNeely, legal counsel for Second Century, the private corporation Cappas and Pannos created to manage the casino money, said Thursday, "We will respond. We will prevail, and our only hope is that this doesn't interfere with our ongoing efforts to resolve this matter by settlement.

"McNeely said the city and attorney general have consumed two years and hundreds of thousands of dollars in legal fees in a failed effort to wrest control of the casino funds away from Second Century.

McNeely has presented testimony that Cappas and Pannos have helped build millions of dollars worth of new housing and would to do more if Mayor George Pabey's administration wasn't blocking initiatives.

Second Century was a side agreement to the deal that brought one of Northwest Indiana's five floating casinos to this city.

The casino, now called Resorts East Chicago Casino, has been paying three quarters of a percent of its gambling revenue to Cappas and Pannos, political allies of former mayor Robert Pastrick, who endorsed the deal.

Pabey, who defeated Pastrick in 2004, demanded that agreement be rewritten.

Second Century sued to block that move and has prevailed in its battle with the city. The city is appealing the matter before the Indiana Court of Appeals.

I hope Carter is successful in his efforts to get to the bottom of this. I've often wondered whether there may have been similar arrangments with other Indiana riverboat casinos which netted political insiders millions.

Meth Lab Discovered In Evansville Attorney's Office

Evansville police raided the law office of Evansville attorney Brad Happe, who had a previous drug-related arrest, and discovered a meth lab. The Evansville Courier Press' Gavin Lesnick reports:

Police said they discovered a meth lab Thursday night in the law office of an Evansville attorney who recently was sentenced to treatment for an earlier drug-related offense.

Brad Happe, 30, is facing preliminary charges of dealing meth-amphetamine and possession of precursors after police raided his law office and reportedly found materials used to make methamphetamine inside.

Happe was arrested on a traffic stop about 6 p.m. after officers with the Evansville-Vanderburgh Joint Drug Task Force saw him leaving his office at 4619 New Harmony Road, which also is his home.

Detectives already were in the process of obtaining a search warrant for the office, said Sgt. Kurt Althoff of the Vanderburgh County Sheriff's Department.

Happe was taken to the Sheriff's Department, where he reportedly told detectives there was nothing dangerous inside his residence and office. He told a sergeant that he would not comment any further, Althoff said.

Officers started the search about three hours later, reportedly discovering a number of items used in the manufacturing of methamphetamine inside the office and more materials in an adjacent, vacant apartment.

Police confiscated suspected anhydrous ammonia, pseudoephedrine tablets, lithium batteries, sulfuric acid and other items commonly associated with manufacturing meth, Althoff said. This arrest comes a little more than a month after Happe was sentenced on a misdemeanor charge after an arrest for visiting a common nuisance.

In that April 2006 incident police, found him outside a home where a meth lab was discovered.

Bauer: Strike Second Paragraph Of SJR-7

House Speaker Pat Bauer tells the Star's Bill Ruthhart that the second paragraph is not necessary to constitutionally ban same-sex marriages. Ruthhart notes this is the strongest public position Bauer has taken to date on SJR-7. Bauer is quoted as saying:

"I'm afraid that the demagoguery is saying we have to have both sentences. You don't have to have both," said Bauer, D-South Bend. "Part A bans gay marriage in the constitution. Part B is not necessary, but they're trying to say it is, and they're putting up an ugly fight."

By taking this position, Bauer forces the proponents to admit they really want to do more than just ban same-sex marriages in Indiana. They claim it's needed to prevent the courts from circumventing the amendment by allowing civil unions. "That's the fear," said Sen. Brandt Hershman, R-Wheatfield, the amendment's author. "The first sentence would provide some greater protection than exists today, but removing the second sentence weakens the overall effectiveness of the amendment."

That begs the question of what a civil union is in the minds of the proponents. Sen. Brandt Hershman in 2003 said he believed offering DP benefits at a state university amounted to providing legitimacy to a same-sex union. That prompted him to offer an amendment to the state budget which would have cut off funding to any public university which offered the DP benefits.

Changing the amendment also brings up the debate whether the change would require the amendment to restart the process, or whether it can still be sent to voters in 2008. Ruthhart explains Bauer's position the amendment can still go before voters in 2008, even if the second paragraph is struck from the amendment:

Bauer's chief of staff, Pete Nemeth, refers to a constitutional amendment passed by the General Assembly in 1982 and 1984. That measure, which dealt with legislative representation in the General Assembly, was changed after the 1982 vote and still was approved by voters.

"This sets the precedent that this can be changed and not slow down the process whatsoever," Nemeth said of the amendment.

Pelath also has cited a 1972 Indiana Supreme Court decision, which he said allows the legislature to alter an amendment and still send it to the ballot.

Hershman and House Minority Leader Brian Bosma aren't buying their argument. "Hershman said those arguments aren't strong enough to withstand a legal challenge." "The precedent set in the 1980s, he said, was never challenged in court and was technical compared to an amendment banning same-sex marriage." "I don't think these precedents are clear," Bosma said. "I don't think legal scholars are going to formulate the same opinion the speaker's advisers have."

Isn't it interesting how unwilling Hershman and Bosma are to trust precedent in Indiana law on an issue involving the process of amending the constitution, while at the same time the two expect the opponents to take everything to chance over a paragraph even conservative legal scholar Judge Robert Bork conceded was "poorly" drafted? And that was quite an admission on Bork's part concerning a virtually identical version of the original federal marriage amendment, which he helped draft. I'm not sure which way the court would rule on this issue, but it's completely nonsensical and highly political to take the position you can't make any change to a proposed change in the Indiana Bill of Rights because it may take a little longer to accomplish the change than the proponents would like, particularly when there is not one scintilla of evidence Indiana courts would ever recognize same-sex marriages.

Thursday, March 29, 2007

Senate Approves Land-Based Casinos For Horse Tracks

If you wanted a demonstration of just how badly the worst element of the gaming industry has managed to wrap its tentacles around our elected officials, you needed to look no further than our own Indiana Senate, where a proposal to turn the state's two horse race tracks into land-based casinos passed by a vote of 27-21. The Senate's newest member, Jim Arnold (D), cast a vote in favor of HB 1835 as did most of the Senate Democratic caucus. “Think of the good things,” Arnold, D-LaPorte, said. “Gambling is a way of life. It’s here. … Let’s use it to our advantage.” It is highly unlikely the late-Sen. Anita Bower would have shared his sentiments. A majority of Senate Republicans, including President Pro Tempore David Long, voted against it. Sen. Richard Young (D), a candidate for governor, voted for it as did Sen. Vi Simpson (D).

If this legislation actually becomes law, you can be assured the Indiana legislature has hit rock bottom. This is government at its worst. This is where Sen. Robert Garton's presence in the Senate would have made a difference. He knew who the folks were behind this legislation. He knew what they were willing to do to get what they wanted. And he told them to get lost for the good of the institution. Sen. Long would have been wise to have done likewise.

Wednesday, March 28, 2007

Wade Steffey's Death Deserves Answers

The untimely death of 19-year-old Purdue student Wade Steffey has raised some very troubling questions surrounding his death to which his family and the public are owed some answers. If we are to believe the account of Purdue officials and police, Steffey died the same day he disappeared on January 13 after he unwittingly entered an unlocked door leading to a high voltage utility room of a student dormitory where he died from an electrical shock while feeling his way through the darkened room. Investigators speculate he entered the door late at night in hopes of finding a way into Owen Hall, a dormitory where he had left his coat.

Despite a massive search for Steffey beginning a couple of days after his disappearance, nobody discovered Steffey's body in the utility room, even though officials said the room was searched and K-9 units had been used in the area to search for Steffey. The body was not discovered until March 19 after students returned from spring break after a physical facilities employee was notified of a popping noise eminating from the area of the utility room. This employee was drawn into the room, according to the Purdue's Exponent student newspaper, by a "strange odor" emanating from the room. He discovered Steffey's body just 50 yards from where he had last been seen on January 13. As the Exponent reported on March 21 :

The room in which Steffey was found had been searched once from the inside entrance shortly after he disappeared. Because of poor lighting and the position of the body, however, searchers could not see him from that doorway. Eight K-9 units also failed to uncover the location of the body, despite several searches in the building's vicinity.

Norberg said the odor of the body may have been masked by the odor emitted from the transformers, which is sealed from the inside of Owen by a thick door. The room also maintained a slightly higher temperature than outside, which may have postponed the decomposing process.

If Steffey died from electrocution on January 13, why were no "popping noises" heard for more than two months--the sound of his body grounding the electrical current? Why was the odor not detected during this period of time? How could the outdoor entrance to the high voltage utility room remained unlocked and undetected for more than two months? Why was the outside door to the utility room not marked with the words "DANGER, HIGH VOLTAGE"? Why wasn't there a light switch by the outside door, which would allow someone to turn the lights on without stumbling through the dark searching for the only other light switch near the locked inside door? A cell phone was found with Steffey's body. Were signals not emitted very near this area around the time of his disappearance?

What is even more troubling is a new revelation today that a Purdue maintenance worker found a shoe belonging to Steffey on January 23 just 10 days after he disappeared in the door well leading into the room where his body was found. The AP reports:

A maintenance worker found a shoe belonging to a missing Purdue student near a utility room where his body eventually was found, a spokeswoman for the university said.

But searchers didn't immediately link the plaid-lined slipper to Wade Steffey when it was found on Jan. 23, 10 days after the 19-year-old Bloomington man vanished.

"Obviously, it's something that we wish -- in hindsight -- had made us look more closely," Purdue spokeswoman Jeanne Norberg said Tuesday . . .

Numerous items of clothing were found and stored as potential evidence, Norberg said. The shoe was covered in leaves and debris and looked as if it had been outdoors more than 10 days, she said.

Steffey's parents are not satisfied with what they've learned so far. They've retained an Indianapolis law firm, Montross, Miller, Muller, Mendelson and Kennedy, to represent them in a potential action against the university. Speculation about Steffey's death has been further fueled by Internet rumors about his sexual orientation and whether that could have played any role in his death.

It is clear that Purdue officials and local police badly mishandled the search for Steffey. I only hope the passage of time and the resulting deterioration of the condition of his body over that more than two month period does not remove the possibility of getting the answers his family and the public deserve.

The photo above was taken by the Lafayette Journal and Courier.

Bork Bombshell: Amendment's Language "Poorly Drafted"

The evolution of the Federal Marriage Amendment in Congress is very illuminating to the current debate here in Indiana over the controversial second paragraph of SJR-7. As Don Sherfick related to members of the House Rules and Procedures Committee last week, the second paragraph of the original version of the FMA (upon which SJR-7 is based) was amended due to concerns it would deny the legislature discretion to legislate in the area of civil unions and other benefits for unmarried couples. As it turns out, nobody was more concerned about the language in the second paragraph than one of its principal draftsmen, Judge Robert Bork. During testimony before the House Judiciary Committee on May 13, 2004, Bork described the second paragraph as being "poorly drafted" and causing "needless controversy". At his urging, the FMA was amended to make it clear the legislature had the right to legislate these rights. Bork told the Committee:

Objections to this second sentence have convinced me that it is poorly drafted and causes needless controversy. Critics say that, read literally, the sentence would forbid courts to implement legislatively-enacted civil unions. That was not the intent. It was hoped that this objection could be avoided by making the intention of the sentence clear in the debates that would surround the amendment in Congress and, if sent to the states, in the ratification debates. It was thought, moreover, that the word ‘‘construed’’ would indicate that the sentence was intended merely to restrain activists courts from requiring civil unions against the desires of the legislature involved.

There is no point in debating this matter when altering the language of the second sentence can make the point clear. For that reason, I recommend the version of the second sentence contained in Senate Joint Resolution 30: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." There is no doubt whatever, that this sentence leaves legislatures free to provide for civil unions if they wish. Thus, Vermont, which now has civil union legislation enacted under the coercion of its supreme court, would be free either to retain or repeal that legislation. The Senate language makes absolutely clear what was intended in the House version of the Federal Marriage Amendment.

So the gig is up. Either Senator Brandt Hershman (R-Wheatfield) and the proponents of SJR-7 inadvertently copied the wrong version of the FMA making it applicable to "any state law", as well as the constitution, or they deliberately chose this version knowing full well it indeed does more than what they are telling Indiana lawmakers and the public. There's no mistaking the extent to which Bork's comments back in 2004 are now haunting SJR-7's proponents. Bork, who was no activist judge when he served on the federal Court of Appeals, was rejected by the U.S. Senate because of his adherence to a very strict interpretation of our U.S. Constitution. The proponents can't simply dismiss his comments about the second paragraph as "politics" as they have done other opponents of the amendment.

I should add that, even with the removal of the "any state law" language, there remains considerable confusion surrounding the term "legal incidents of marriage". As Professor Aviva Orenstein testified last week, there is no clear definition of what the term means based upon case law here or elsewhere.

A big hat tip to Ed Fox for tracking down Judge Bork's testimony before the House Judiciary Committee.

Has "In God We Trust" Become Indiana's Official License Plate

A little more than a week ago, Taking Down Words asked the question whether the "In God We Trust" license plate has become Indiana's official license plate based on reports by persons who visited local BMV branches that they had been issued the "In God We Trust" plate in place of the regular Indiana license plate without requesting it. Today, a friend of mine went to the BMV branch on Virginia Avenue and was asked by an employee whether he preferred he wanted the "green plate" or the "blue plate". The green plate meant Indiana's regular license plate, while the blue plate meant the "In God We Trust" plate.
By law, the BMV is required to issue you the regular Indiana license plate unless you reqest one of the special license plates from which there are several dozen to choose. The special license plates typically are accompanied by an additional fee, which is used to benefit a particular cause. The "In God We Trust" plate costs no more than the regular license plate because it benefits no specific group. Or does it? If the BMV is issuing the license plate as a regular license plate, it seems to me the state is stepping over the line to endorse a specific religion. The license plate was the brainchild of Eric Miller's Advance America, and the legislation authorizing it was authored by Rep. Woody Burton (R-Greenwood). It is clear BMV employees are being directed to issue the "In God We Trust" plate over the regular license plate. Would they do the same for a license plate which read "In Allah We Trust"?
Personally, I think the state has gone completely overboard with all of these special license plates. How is anyone supposed to know whether your automobile is plated with an Indiana license plate when there are so many different types of plates? This makes identification of vehicles used in the commission of a crime particularly difficult if a witness is unable to identify whether it's an Indiana-issued license plate, let alone the identifying numbers and letters on it.

Eli Lilly Announces Opposition To SJR-7

Proponents of SJR-7 suffered another major blow today when Eli Lilly, one of the state's largest private employers, announced in a letter to House Speaker Pat Bauer it opposes the amendment because it will make the job of recruiting more difficult, and it might place Lilly's domestic partner benefits at risk. The Star's Mary Beth Schneider reports:

Eli Lilly and Co. today became the latest large Indiana employer to oppose a proposed constitutional amendment banning same-sex marriage.

Tony Murphy, Lilly's senior vice president for human resources, sent a letter to House Speaker B. Patrick Bauer, D-South Bend, and other legislators saying the amendment could hinder Lilly's ability to attract employees and also paint an image of Indiana as an intolerant state.

Murphy said in the letter that Lilly, which employs nearly 16,000 people in Indiana, has offered domestic partner benefits since January 2004. He said the company is concerned that the language of the amendment could put those benefits at risk.

In addition to defining marriage as being between one man and one woman, the amendment, Senate Joint Resolution 7, states that the 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."

"As a result of this uncertainty (over what the amendment's impact might be,)" Murphy wrote, "some employees may choose to leave Indiana to work in a state where these benefits are perceived not to be threatened. Given the great lengths Lilly takes to attract and retain top talent from around the world, we oppose any legislation that might impair our ability to offer competitive employee benefits or negatively impact our recruitment and retention."

In addition, Murphy wrote, Lilly is concerned the amendment "sends an unwelcoming signal to current and future employees making Indiana appear intolerant."

During a hearing last week in the House on the proposed amendment, spokesmen for Cummins Inc. and WellPoint both testified that the amendment could hurt their efforts to recruit employees and could also jeopardize domestic-partner benefits. A third firm, Dow AgroSciences, sent a letter voicing similar concerns.

The proposed amendment passed the Indiana General Assembly in 2005, but must pass a second time before going to voters for their approval. The Senate approved the amendment earlier this year, and now it is awaiting action in the House.

Added to earlier opposition from Cummins, Dow AgroSciences and Wellpoint, Lilly's announcement clearly places all the big business players firmly in the camp opposing SJR-7. The real question is whether the position of these heavy hitters will move any of the lawmakers in the House to back off their support of SJR-7. As many as three-quarters of the members of the House may support the amendment based on their past voting record and announced position. Only one Republican, Rep. Jon Elrod (R-Indianapolis), has announced his opposition to the amendment. AI has learned that at least one House Democrat member is miffed at the proponents after being told before last week's hearing by one of their lobbyists there was no business opposition to the amendment. That is clearly not the case as we now know it.

It's now time for officials at Purdue and IU to get off their butts and do the same as these forward-looking companies have done. Officials know their employees' DP benefits are in grave danger if SJR-7 is enacted, but they are more concerned about legislative retaliation against their own budgets than doing what is right. It's time for these folks to say publicly what, up to now, they've only been willing to say in private about SJR-7.

Right Versus Wrong

I had to look far and wide for this particular picture, but I finally found it with Lesley Stedman Weidenbener's story in the Louisville Courier-Journal about the rally Eric Miller and his "nonpartisan" Advance America organization held at the State House yesterday. Standing at the podium is SJR-7's author, Sen. Brandt Hershman (R-Wheatfield). Notice the supposed nonprofit organization has its founder's name (and former GOP candidate for governor) emblazoned in big letters on the banner behind the podium just like it did two years ago when a similar rally was conducted. Standing in front of the crowd yesterday, the twice-married and childless Miller said in defense of a constitutional ban on same-sex marriage, "It's right versus wrong."
"Do you support traditional marriage?" the amendment's author, Sen. Brandt Hershman, called to the crowd. He should have directed the question to himself. Hershman, like Miller, is married for the second time. His former wife, according to the Logansport Pharos Tribune, claims he demanded she abort their unborn child before he filed for divorce.
And how many Democrats joined Miller on the stage yesterday? In every single news account I've read so far, only Republicans have been referenced. In addition to Hershman, I've seen Rep. Eric Turner (R), Rep. Woody Burton (R), Rep. Jackie Walorski (R), and Rep. Bruce Borders (R). Just like all of the "nonpartisan" groups events, there were plenty of Republicans and no Democrats.
Meanwhile, House Speaker Pat Bauer is reacting to yesterday's full-page ad in his hometown newspaper accusing him of playing politics with the amendment. Bauer told the South Bend Tribune the ad will have no impact on whether a vote is taken and "is meant to be a poisonous dart at whoever they perceive as their enemy." "The legislator said his office received few phone calls because of the ad." Bauer took issue with the ad's claim the Democrats lost control of the Indiana House because of his refusal to allow a vote on the amendment the last time Democrats were in control. "He said a paragraph in the ad which said Indiana voters removed him as speaker in 2004 because he blocked a vote on the issue was erroneous." "What happened, he said, is that his party didn't win the majority in the House."

Tuesday, March 27, 2007

Former AFA Attorney & Columnist Speaks Out Against Its Anti-Gay Bigotry

Pam Spaulding scores an exclusive interview with Joe Murray, a former staff attorney and columnist for the American Family Association in which he speaks critically of the organization's anti-gay bigotry. Murray caught the eye of Spaulding when she discovered an opinion piece he wrote critical of the AFA's embracement of General Peter Pace's remarks that "homosexuality" was immoral. "AFA, like other "Christian" groups, chose to run to Pace's aid and such an act suggests borderline bigoted behavior from an organization claiming the mantle of Christianity," Calhoun wrote. "This is disturbing," he added. Having read a number of his own past, anti-gay columns, Spaulding was intrigued and decided to contact Calhoun directly, and he graciously agreed to an interview.

Calhoun said he was originally attracted to the AFA because of its pro-life position. To him, the gay issues were always secondary. Murray describes how the organization's views towards gays "tore at his conscience." "How could AFA, an earthly organization, declare the divine intention of the God and condemn the souls of homosexuals?", he asked. "How was it that men could make the declaration of who was getting into Heaven and who was getting the one-way ticket to Hades?" He then shared this thoughtful analysis, challenging the very Biblical principles upon which the AFA based its views for condemning homosexuality:

I thought who are these people to say who is getting into Heaven and who is not? I thought of the story of Joan of Arc, who, when she was being burnt at the stake, was ask the question of whether she would go to Heaven.

Her response? "If I am not, may it please God to put me in it; if I am, may it please God to keep me there." In other words, it is God, not man, who decides who gets to pass through the gates of Heaven. So, how could groups like AFA even hint that gays were doomed to hell? This smacked of the politics of man, not the divine mercy of God.

Then there was the fact that the gay issue had become over simplified-a sure sign that some facts were missing. Where was the Biblical authority for the condemnation that all homosexuals were to bury in the fires of Hell? In order to answer that question, I decided to take an in depth study of the Bible to determine if what these conservative theologians were preaching was sound.

As I studied the Bible, I found that the word "sodomite" that was used in Corinthians and Romans referred not to all homosexuals, but largely to the promiscuous behavior of the Roman/Greek bathhouses and the use of boy prostitutes.

Take for instance, 1 Cor. 6:9-10, a verse commonly referred to support the argument that all forms of homosexuality are immoral. As I understand it, the Greek word translated as "boy prostitutes" may refer to catamites, i.e. the boys or young men kept for purposes of prostitution and the term translated for "sodomites" refers to all homosexual males who engaged in such practices with such boys. In other words, the condemnation of homosexuality in that passage, thus, refers only to homosexual males who engage the services of boy prostitutes-it is a very narrow definition.

To argue that this verse condemns all homosexuality ignores the true meaning of the words used. Rather than embrace the true meaning of the words and explore the possibility that some homosexual conduct may be permissible, such as that between two consenting adults, fundamentalists have opted to hijack this verse and fill in the gaps with the wisdom of the world.

In other words, the definition was not as broad as many fundamentalists would argue, thus it left a huge opening as to whether gays in a committed relationship would be damned to hell. How could preachers preach such vehement messages towards gays when it was clear that the Bible was unclear at best, and silent at worse, on the issue? Why recklessly condemn a group of individuals? Why fixate on them when your congregation is knee deep in divorce (Jesus had some pretty clear words on that issue)? And as for gluttony, how could preachers lecture gays on restraint when churches host pot luck dinner after pot luck dinner and not be deemed hypocritical?

It was this hypocrisy that caused me to open my eyes. Those on the Christian right, for whatever reasons, have become fixated on homosexuality. They are obsessed by it and perverse form of vengeance appears to be fueling their inquisition. I may be wrong, but I think actions are speaking much louder than words here.

The whole gay issue is no longer about the quest for the Truth; it is about fear and loathing. It is about shame and sorrow. It is anything but Christian. And if a person's sexual disposition is determined by birth, how can it be that these folks were created merely to be cast into Hell? The fundamentalist explanation makes no sense, but the view that only some homosexual behavior (see the verbiage used in Corinthians, etc.), and not all gays, is immoral does make sense.

Thus was my evolution. I may not be right, but I think the Christian community must explore these issues openly and honestly if they are truly to remain Christian. We have an obligation to explore these issues and be open to the fact that the modern view on homosexuality may be wrong.
The interview covers a lot more, but there is one matter which really caught my eye. In Indiana, the Indiana Catholic Conference has teamed up with the AFA to fight for the passage of SJR-7. Some Catholics might be interested to know that, according to a top executive of the AFA, Catholics aren't Christians. That revelation came in the interview when Spaulding asked Calhoun about his thoughts on who the organization would back for president in 2008. Calhoun suggested former Gov. Mitt Romney would have a serious problem getting support from the group because of the "religion issue" (i.e., he's a Mormon). Calhoun tells Spaulding:

As for Mitt, he has the religion issue. I remember during a weekly mandatory devotional at AFA, one top AFA executive made the statement that Catholics were not Christians (being a Catholic? this was news to me). So if Catholics are not Christians, I can only imagine what Mormons are considered.

Calhoun doesn't think the AFA likes any of the top-tier Republican candidates, particularly Sen. John McCain or former New York Mayor Rudy Guiliani. In the final analysis, however, the AFA will back whoever the GOP nominates. "As a former staffer for the [Pat] Buchanan campaign, I can testify to how groups like AFA, when backed into a corner, will go with the political choice over the principled candidate," he said. "Hence, to answer your question, while not initially supportive of any of the first tier candidates, I believe that once the nomination is made, AFA, and other Christian groups, will follow the party line," Calhoun ended.

SJR-7 Legal Analysis Full Of Holes

According to Taking Down Words, a legal memorandum has been prepared by The Marriage Project on behalf of the proponents of SJR-7 and is being circulated to newspaper editorial writers around the state of Indiana to rebut the arguments opponents have been making that the amendment does more than just define marriage. My own analysis of their memorandum reveals it is riddled with legal holes, which create far more uncertainly than the assurance it seeks to provide Indiana lawmakers as they ponder whether to send the amendment to voters as is, or to make significant revisions to avoid "unintended consequences."

While opponents, led by attorney Don Sherfick, have pointed out that the language of the proposed amendment was borrowed from an earlier, flawed version of the federal marriage amendment (FMA), the memorandum boasts of the amendment's similarity with the FMA, without mentioning it is based on an earlier version rejected by even the FMA's authors. The memorandum reads:

The Congressional text and the Indiana text have sprung from the same seed. They have the same source and the same purposes. In our judgment, the two texts must be read together. The two documents are not formally equivalent, but they do address the same subject matter in virtually the same words, and their interpretations can be harmonized. The meaning of the former can lead to an understanding of the latter.
The memorandum relies on Sen. Wayne Allard's reasoning for the second paragraph without noting the differences between the language of the two. As Allard explained:

The second sentence simply ensures that the people or their elected representatives, not judges, can decide whether to confer the legal incidents of marriage on people. Citizens remain free to act through their legislatures to bestow whatever benefits to same-sex couples that they choose. It is aimed squarely at the problem of judicial activism.

What our amendment does is to define and protect traditional marriage at the highest level – the U.S. Constitution. Importantly, the consideration of this amendment in the Senate represents the discussion of marriage in America in a democratic body of elected officials. I am not willing to surrender this issue to the courts.

As Sherfick and others have noted, however, the FMA removed the language extending the amendment's limitation to "any federal law" or "any state law"; it applies only to the U.S. Constitution or a state constitution. The omission of this significant difference in the proponent's legal analysis completely undermines their contention that it does not in any way limit what the legislature can do in providing benefits other than marriage to unmarried couples, whether straight or gay.

Next, the proponents provide specious arguments in their legal memorandum to provide a justification for an amendment limiting marriage to opposite-sex couples. While the memorandum acknowledges that Indiana has already statutorily limited marriage to opposite-sex couples, and that the Court of Appeals in Morrison v. Sadler upheld its constitutionality, this is not enough we're told. The statute is not "safe", it says, because the decision was not made by the state's highest court. And you know what those activist judges are capable of doing. The memorandum warns of what has happened in other states:

That decision is tentative, however. Lower courts in Vermont, Massachusetts, and New Jersey all upheld the lawfulness of man-woman marriage. However, when the cases were appealed to courts of last resort, the lower courts were reversed. Apparent victories at the appellate courts turned into defeats at the supreme courts. It is naïve to suppose that constitutional challenges to Indiana’s DOMA have ended. Indiana is only between rounds.

What is missing from the legal analysis is that Indiana, unlike these other states, applies a much less rigorous standard in reviewing any statute on state constitutional "equal protection" concerns. Our state's "privileges and immunities clause", unlike similar clauses in these other states cited by the proponents, reviews the constitutionality of a statute according to the rational basis standard, which presumes any legislative enactment to be constitutional, even if a fundamental right is at stake. These other mentioned states apply a heightened scrutiny analysis in similar cases. Further, the Court of Appeals in Morrison v. Sadler notes there is no precedent for conferring as a fundamental right a right to marry a person of the same-sex. Very rarely has any plaintiff ever succeeded in overturning a statute approved by our General Assembly. Moreover, the proponents cannot cite a single case in which the Indiana Supreme Court recognized any previously unrecognized right--so-called "springing rights" which arise from an evolving standard of justice as interpreted by the court.

The memorandum seeks to dismiss the concerns raised by the opponents about the unintended consequences. They insist it is necessary to prevent the court from forcing recognition of something less than marriage, such as civil unions, as happened in Vermont or New Jersey. They write, "A one-sentence amendment may safeguard Indiana from the “Massachusetts malady” of having same-sex marriage thrust upon them by a one-judge majority of an over-active court (i.e., Massachusetts), but a one-sentence amendment will not safeguard you from the kinds of challenges to marriage and democracy that arose in Vermont and New Jersey." Again, they ignore the differing and more rigorous legal standards upon which those states' courts use in the interpretation of their respective constitutions. And they also insist it will not limit the legislature, but the amendment clearly applies to statutory enactments. They write: "As we read it, the Indiana amendment will not prohibit the Indiana legislature from doing what the Vermont and New Jersey legislatures did; the Indiana amendment will prohibit the Indiana courts from doing what the Vermont and New Jersey courts did."

They assure us the words "or any other law" is of no extra meaning because the phrase is preceded by the word "construe". "Indiana’s addition of the term “or any other Indiana law” does not amount to a decisive difference in the amendments because, in our judgment, the key term in both texts is the word “construed,” and not what precedes it," they maintain. But as Professor Aviva Orenstein correctly observed, the word "construe" does not confine its application to the courts only. Indeed, every actor within our government is engaged in "construing" or interpreting our constitution in carrying out their constitutionally-prescribed duties, whether a member of the executive, legislative or judicial branch. The only cases the proponents can cite for their contention are ordinary cases of statutory interpretation. They can point to no precedent for a court limiting a constitutional provision's applicability to a court because of the presence of the word "construe."

It is also quite telling that the proponents seek to explain what the term "unmarried couples or groups" means, but they completely ignore the equally significant term "legal incidents of marriage" in their legal analysis. Explaining the need for the term "unmarried couples or groups", they write, "[t]his is [necessary] to prohibit imitations of marriage, and counterfeits." Professor Orenstein noted her struggle to find any common definition of the term "legal incidents of marriage" in Indiana law or elsewhere. Most of the decisions she found in Indiana dated back to the 1800s and dealt with the then-evolving property rights of women. It is critical to know the meaning of the term, however, if you are going to insist it would not affect other rights such as domestic partner benefits. The proponents seek to dismiss the Michigan court ruling adversely affecting domestic partner benefits there. "The Michigan decision is not directly related to Indiana’s debate because the constitutional texts are different, but the Michigan decision ought to teach us that a constitutional amendment on marriage can both strengthen marriage and benefit unmarried persons," they write. But they add, "The second sentence of the Indiana amendment does not speak about individuals, but of “unmarried couples or groups.” Again, they ignore the term "legal incidents of marriage." They won't seek to define it because they know, as Professor Orenstein learned from her research, there is no clear definition.

I implore newspaper editorial writers and lawmakers who've been provided a copy of this legal memorandum to press the issues I've raised here. There's too much at risk when it comes to amending our constitution. We should leave nothing to chance. The proponents have miserably failed in their efforts to convince us the amendment will accomplish only what they want us to believe it accomplishes. It does much more. Someone needs to put an end to this madness before it's too late.

Will This Ad Anger Bauer?

This is the full-page ad the American Family Association of Indiana ran in the South Bend Tribune today questioning whether House Speaker Pat Bauer is a man of his word and accusing him of playing politics with SJR-7. How do you think Bauer will respond to this tactic? Click on the image to enlarge it.

Monday, March 26, 2007

SJR-7 Proponents Put Heat on Bauer

The Indiana Daily Insight reports that proponents of SJR-7 took out a full-page ad in the South Bend Tribune to urge House Speaker Pat Bauer to allow a vote on the discriminatory amendment. The IDI writes:

Advocates of SJR 7 fund a full-page ad in Tuesday's edition of the South Bend Tribune urging House Speaker Pat Bauer (D) to allow a House floor vote on the constitutional amendment. And if you thought that Indianapolis Star political cartoonist Gary Varvel specialized in making the Speaker look less than flattering . . . you will need to check out the picture of the Speaker that adorns the ad.

The unflattering photo the IDI mentions is likely the same photo the American Family Association uses every time it mentions Bauer's name. UPDATE: The ad itself was paid for by the American Family Association of Indiana PAC. It challenges Bauer to keep his promise to hold a hearing, allow debate and a vote to be taken on SJR-7. The ad alleges Bauer is considering an amendment to SJR-7 "that would severely weaken traditional marriage and deny the people a vote on the issue until at least 2010." It accuses him of "playing party politics" with the proposed amendment. It asks Bauer, "Are you a man of your word?" I suspect Bauer will react negatively to this dishonest attempt to put pressure on him.

Speaking of the AFA, I got a big chuckle reading this passage by Micah Clark commenting on the people who testified at last week's hearing on SJR-7:

Still, there were few legal scholars opposing the amendment, and not one who had actual experience in constitutional marriage amendment issues. It is the supporters who have numerous marriage experts, some of whom have argued these marriage protection matters before several state appellate and supreme courts. Those scholars affirm what we have been saying about the purpose and scope of SJR 7. That purpose is simply to keep a runaway judge from forcing the Indiana legislature to create civil unions or same-sex marriages as has already happened in other states. Nevertheless, this battle is becoming more about politics than the legal facts.

What Clark calls marriage experts aren't marriage experts at all. They are really just paid mouth pieces by the religious right. Even their go-to attorney, Terre Haute lawyer Jim Bopp, is no expert on marriage laws, although he has considerable constitutional law experience. Chris Stovall, the guy from the Arizona think tank who spoke at the hearing, is no expert on the issue by his own admission of his prior background and experience prior to joining the Alliance Defense Fund two years ago. And he clearly knows nothing about Indiana law based on his testimony last week. In fact, nobody the proponents have asked to testify could hold a candle to the credentials of Professor Aviva Orenstein of the IU Law School-Bloomington on the subject.

Clark's additional assertion that the amendment debate is becoming "more about politics than the legal facts" is laughable. Everyone knows the religious right sat down at the beginning of Bush's first term with his chief political operative Karl Rove and plotted out a strategy to maintain Republican control in Congress and the State Houses by pushing these discriminatory anti-gay marriage amendments state-by-state. For folks like Clark and Miller, it's always been about politics--and good business. Gay bashing has always been a successful way of raising money for their phony nonprofit organizations.

Council Dems Block Probe Of Gray

Democratic members of the Indianapolis City-County Council on a party-line vote blocked a proposal by council Republicans to conduct a probe of City-County Council President Monroe Gray and his ties to a leading city contractor, James Trotter. Gray neglected to report his ties to Trotter on his statement of economic interest he filed with the Indianapolis-Marion County Board of Ethics. Gray says he relied on the advice of his counsel, Aaron Haith, in making the decision not to disclose the relationship. Haith's representation of Gray presents a conflict of interest in and of itself. Haith serves as the council's attorney.

The Star's Brendan O'Shaughnessy reports Gray is calling for an investigation by the ethics board instead. This would be the same ethics board which ignored a written request I submitted back in December for a copy of Gray's statement of economic interest, along with that of several other council members and city officials. The ethics board has ignored my request for three months in clear violation of Indiana's open records law. The Board of Ethics is comprised of five members, three of whom are appointed by the mayor, and two of whom are appointed by the council. In other words, it's stacked with Democrats.

This is what one-party rule by the Democrats in Marion County means--unchecked corruption. Sadly, the Marion Co. Prosecutor, the one person who could easily conduct a meaningful investigation of Gray's ties to Trotter, appears to be missing in action. And what about the feds? They are nowhere to be found when it comes to corruption by public officials in Indianapolis. Enjoy it folks as we became more and more like a third world banana republic.

Daniels Does It Again

You knew it was too good to be true when Gov. Daniels just two days ago feined being truly moved by the opponents of his proposed new outer toll road around Indianapolis known as the Indiana Commerce Connector and graciously conceded defeat. Today, to spite opponents from the affected areas of the ICC, Gov. Daniels said there's no funding available to extend construction of I-69 from Evansville to Indianapolis. Instead, next year INDOT will begin construction on an Evansville to Crane Naval Surface Warfare Center in Martin County. As for the remaining leg to Indianapolis, Daniels says that might have to wait another 7 or 8 years, or whenever the opponents find a way to pay for it. The Star's Theodore Kim reports:

Gov. Mitch Daniels said today the state may have to turn to traditional funding --- state and federal gas tax revenues --- in order to complete the 142-mile Interstate 69 extension between Indianapolis and Evansville.

He signaled he is in no hurry to find that money. The state has already earmarked about $700 million to build I-69 from Evansville to the Crane Naval Surface Warfare Center in Martin County. Construction on that segment will begin next year.

The portion from Crane to Indianapolis will be built later, perhaps in six or seven years, Daniels said.“The good news is we have seven years to work on (finding enough money),” Daniels said. “It may simply come out of the standard funds of INDOT as it would have otherwise.”Daniels also said the state, in an effort to pay for the project, may have to reconsider putting tolls on the extension.

The governor’s public comments were his first since Saturday, when he withdrew his proposals for private toll bypasses in Central and Northwest Indiana.

Those projects encountered intense criticism from the public.

“We meant to touch off a good debate about this new idea. It was clear to me there was not sufficient consensus to proceed as I think there ought to be,” Daniels said.

For those of you who recall last year's debate in the House over Major Moves, you will recall it passed only with an understanding there would be no tolls on the I-69 stretch from Martinsville to Indianapolis. Now, the governor is saying that part of the extension may not be built unless tolls are placed on it. Daniels already broke faith on the I-69 component of his Major Moves program when he proposed his ICC for the first time late last year and suggested I-69 could not be built without the construction of the new toll road proposal which had never seen the light of day until the words came out of his mouth. When you put your agreement to writing, you're suppose to have a deal. With Gov. Daniels, it seems that's just the beginning of an ongoing negotation.

Coinciding with that disappointing message from the governor was another message from his administration that a major overhaul of Major Moves may be in order due to inflationary costs. The AP reports from an earlier Star report:

Gov. Mitch Daniels said toll road lease money would pay for more than 400 major new road or maintenance projects in Major Moves, including the extension of Interstate 69 from Indianapolis to Evansville, two new Ohio River bridges near Louisville, and the completion of the Hoosier Heartland Highway in north central Indiana.

However, rising fuel and commodity prices have significantly increased the cost of steel, bricks and asphalt, the Star reported, citing the Associated General Contractors of America. Road construction costs have risen 11 to 14 percent annually in each of the past three years, while Major Moves assumed just a 3.5 percent annual inflation rate after an initial bump of 11 percent during its first year.

The fast-rising costs could force an overhaul of the plan, the Star said.

Is the inflationary costs really the problem? Did Gov. Daniels oversell what could be achieved with the $3.8 billion toll road revenues? Or, is Gov. Daniels just punishing folks who want the I-69 extension to Indianapolis but wouldn't support his ICC proposal? Any or all of the above are possibilities. If the governor keeps up this approach to governing, I can assure him the voters will send him packing next year.

GOP Ain't Got Nothing Over Intolerance Of Some Indiana Democrats

Many Democrats who support equal rights for gays say it is important that you vote blindly for the Democratic candidates over their GOP opponents. But here in Indiana, it is often the case that Democrats are as anti-gay as their Republican counterparts. An article from the Madison Courier today illustrates this point. Donovan Estridge writes:

Local state lawmakers agreed that traditional marriage between a man and a woman should be protected, thus a constitutional amendment banning same-sex marriage should be implemented.

With people around the state divided on the issue, both Rep. Dave Cheatham, D-North Vernon, and Sen. Jim Lewis, D-Charlestown, told a sparsely attended Third House session Saturday that they will support an amendment limiting marriage to heterosexual couples."

Marriage is sacred," Cheatham said. "For thousands of years, marriage has been the center of the family.""I believe marriage should be between one man and one woman,"

Lewis said. "I don't think people should be punished, but we need to set a definition."

Lewis' statement that he doesn't think "people should be punished, but we need to set a definition" is laughable. Sen. Lewis had an opportunity to pass a version of SJR-7 which merely set a definition, but he did not support such an amendment proposed by Sen. Tim Lanane (D-Anderson) when SJR-7 was in the Senate. Opponents have clearly demonstrated that the second paragraph of SJR-7 goes far beyond a definition of marriage in limiting the rights of unmarried couples, whether straight or gay. Lewis' claim that he doesn't intend to punish people simply doesn't hold water. Rep. Cheatham relies on the old adage that "marriage is sacred" to defend his bigotry against gays. Just for once I would like someone who relies on that adage to explain how the institution of marriage is any way bolstered by this proposed amendment. And it is clear from what Cheatham had to say that he is completely ignoring the overwhelming evidence offered at last week's hearing about the problems SJR-7 will create. The Courier reports:

Cheatham, however, countered with another school of thought, telling the audience that he wasn't trying to prevent people from losing benefits, but trying to define marriage.

"Let's not attach marriage to these rights," Cheatham said.

Though Cheatham doesn't think that same-sex couples would lose out on benefits, other people disagree. Last week, three prominent Indiana businesses came out against the amendment, saying that employees would lose out on health insurance and other perks. One of those businesses was Cummins Inc., which spoke out because many believe that the recruiting drive to attract workers would be hurt if the amendment passes.

Cheatham and Lewis don't foresee Hoosiers losing health care because of a marriage amendment."Everyone has a right to health care," Cheatham said, referring to heterosexual and homosexual couples.

Democrats in the district of the late Sen. Anita Bowser chose a tired-old former sheriff to take her place in the Senate rather than a more progressive candidate who would have shared Bowser's views on issues of equality. Democrats chose former LaPorte County sheriff Jim Arnold over Deb Birkholz by just one vote. While Birkholz' positions would have likely mirrored Bowser's positions on social equality, Arnold is more likely to join the likes of Sen. Lewis and Senate Minority Leader Richard Young in casting votes down the line with the religious right and against social equality.

More On Woodlan Student's Gay Tolerance Controversy

The Star's Rebecca Neal has a front-page story exploring the legal right of a school to control the content of student newspaper publications, focusing on the recent controversy which erupted at Woodlan Junior-Senior High School in Allen County after the student newspaper published 10th-grader Megan Chase's editorial promoting gay tolerance. That led to school administrators demanding total editorial control over the newspaper and placing the student teacher/advisor, Amy Sorrell, on paid leave. The school is now taking steps to terminate her.

One aspect Neal discusses, which hasn't been discussed in other stories, is the fact that the school signed off on what would seem to be more controversial issues for the same edition in which Chase's gay tolerance editorial appeared, including teen pregnancy and sexually-transmitted diseases. As Neal writes:

Amy Sorrell figured the articles on teen pregnancy, teen motherhood and sexually transmitted diseases would be controversial, so she submitted them to her principal before publishing.

But the Woodlan Junior-Senior High School teacher didn't preapprove a student column calling for tolerance toward gays and lesbians that appeared in the same edition of the school paper.

Little did she know, that piece would make state and national news -- and get her suspended from her job this month.

"If we can talk about herpes and gonorrhea on one page, we should be able to talk about tolerance on the next page," says Sorrell, who doesn't believe she did anything wrong.

On the question of whether the school can exercise control over the content of the editorial in question, Neal, unfortunately, relies upon the expert legal advice of IU Law School Professor Henry Karlson, who is known for his rigid, conservative views. As Neal points out, the leading case in the area is Hazelwood School District v. Kuhlmeier, which requires school officials to demonstrate a reasonable educational justification for editing or removing stories from a student publication. As far as Karlson is concerned, the school acted within the law because "the column could be seen as disruptive to the school environment and that Yoder likely met the Hazelwood requirement when he said the column was unsuitable for younger students."

I find it hard to accept that an editorial promoting gay tolerance can be found to be disruptive, while articles on teen sex and sexually-transmitted diseases would be deemed acceptable by the same school administrators. I guess you have to have a strong feelings about gay people as Professor Karlson seems to have. I found this comment by Karlson extremely offensive. "Anyone who thinks an article on homosexuality in Indiana isn't controversial isn't a competent person," he said. Karlson pointed to the controversial same-sex marriage debate before the Indiana General Assembly in support of his position. I suspect Karlson's comments in today's newspaper will stir debate among students and faculty at the law school, particularly since his views are completely at odds with the school's own policy.

Saturday, March 24, 2007

SNL's Peyton Place

Peyton Manning spent his 31st birthday guest-hosting NBC's Saturday Night Live. Tonight's show was one of those nights when every skit fell flat, particularly any involving Manning. The opening skit with him physically abusing kids at a football camp, repeatedly using the f-word in front of them and otherwise being a poor role model was a bad start for the night and it never got better as the show dragged on. The football camp was supposed to be a parody of a United Way promotion, but I found it to be in very poor taste. During his very brief opening monologue, Manning introduced his family, parents Archie and Olivia and brother Eli, who were in the audience. Noticeably absent was his wife, Ashley. The "Not Ready For Prime Time" Peyton would be well-advised to stick to his day job based on tonight's performance. His performance didn't come close to Tom Brady's appearance on the show.
UPDATE: According to a Star story, Manning was pleased with his performance. The skit I found offensive the Star describes as the funniest. The Star's Mark Alesia writes:
What followed was perhaps the funniest part of the show, the NFL/United Way commercial parody. After telling a child who couldn't catch one of his passes, "You suck," Manning showed the kids how to break into a car. Then he gathered them around for some street wisdom."I'll kill a snitch," Manning told the children. "I'm not saying I have. I'm not saying I haven't."The bit ended with an announcer saying, "The NFL and United Way urge you to spend time with your kids so Peyton Manning doesn't."
The Star indicates his wife, Ashley, was in the audience, although she wasn't introduced by him as part of his opening monologue. His brother Cooper was also present.

Daniels Drops Plan For Indy Commerce Connector

Gov. Mitch Daniels has wisely abandoned his poorly thought out plan to build a new toll road bypass outside the I-465 beltway surrounding Indianapolis as part of his proposed plan to build I-69 from Indianapolis to Evansville. In a letter to lawmakers he withdrew the plan, along with a proposal to build a new Illiana expressway east of I-65 in northwest Indiana, in response to overwhelming public opposition to it. Daniels is, however, continuing the push for an Illiana expressway west of I-65 linking northwest Indiana to Illinois. The letter reads:

Like you, I have been paying close attention to the vigorous public discussion around my proposal to explore new privately funded bypass roads in Northwest and Central Indiana. After legislative action to date, some forty public meetings, and lots of other open debate, it is clear to me that we are far from the degree of consensus that is necessary before embarking on major public works projects of high local impact.

Accordingly, I withdraw the suggestion that any action be taken on an Indiana Commerce Connector, or an Illiana Expressway east of I-65. Either of these ideas might benefit from further research, and I would welcome some form of that if your committees are so inclined. But the people of the affected areas have spoken clearly enough to persuade me that these ideas are, at best, premature.

By contrast, an Illiana bypass from I-65 west seems to be broadly supported and can, I hope, be given the chance to move forward.

I appreciate the citizenship of everyone who participated in these two debates. We must never be afraid to venture new ideas for fear of controversy; a state that does that will surely stagnate. But we must also never assume that every new idea is a good one, or imperative to act on immediately.

I hope that you will reshape the legislation along the above lines, but am happy to work with you on whatever approach you deem best for the interests of our state.

More On Ivy Tech's Presidential Selection

The Ivy Tech Board of Trustees' decision to thumb their nose at Gov. Mitch Daniels and pick a candidate not of his choice to replace retiring president Gerald Lamkin continues to reverberate. A story by the Star's Mary Beth Schneider indicates Daniels lost because five of his own appointed trustees joined Democratic-appointed holdovers in supporting businessman Thomas Snyder. Schneider writes:

Though Daniels appointed nine of the 14 trustees on the Ivy Tech Community College board, he didn't get what he wanted when the board picked a new president earlier this week.

Five of his appointees joined Thursday with five holdovers to elect Anderson businessman Thomas J. Snyder as the new college president.

Daniels had preferred Carol D'Amico, the college's executive vice president, with whom he has long ties. In fact, Snyder had been told by aides to Daniels that he wasn't the governor's choice.

After D'Amico was snubbed by the selection committee in a process that outraged some trustees, aides and others close to the governor quietly but persistently campaigned behind the scenes for a do-over. They were snubbed, too.

In the aftermath, Daniels declined an interview and gave no hint that there'd been any controversy at all in the statement he released.

In a separate story, the Star's Kevin O'Neal raises a question about the legality of the vote to approve Snyder for the job. He reports the Board actually took a vote in executive session before it returned to a public meeting to ratify its earlier vote in closed session. The Board's vote in the closed meeting was 10-4, while it was 10-3 in favor of Snyder in the open meeting. O'Neal writes:

The board of Ivy Tech Community College of Indiana may have violated the state's open meetings law by voting twice to approve a new president -- once in executive session.

Trustee Kaye H. Whitehead said Friday that the board voted to approve Thomas J. Snyder as the new president of the community college system in both executive session and in the open, public session.

Steve Key, the general counsel of the Hoosier State Press Association, said that process probably was a violation of the state's open meetings law, which requires public boards to make their decisions in public.

"I'm not sure how they can justify the votes taken in executive session, when the law says final actions must be taken in public," Key said.

But because the executive session and public votes were nearly identical, Key thinks a court would be unlikely to throw out the decision.

For an even edgier take on the Board's decision, check out what fellow blogger Ruth Holladay is saying. She suggests the entire process was corrupted from the very beginning because of the handywork of retiring president Gerald Lamkin. Holladay writes:

Insiders say the process was corrupt from the beginning, with Ivy Tech prez Gerald Lamkin doing everything in his power to keep the post from going to respected educator Carol D'Amico. So twisted, in fact, was the behind-the-scenes maneuvering, that references D'Amico listed were never even contacted. The fix was in.

Why? Because D'Amico, hired by Lamkin and supposedly groomed to take his place, rocked the good-old-boys' boat too much. She was insistent on cleaning house in an educational system that has become far too political and is a shelter for incompetence. When key legislators are on the payroll as public relations speakers, etc., education is hardly the first priority. D'Amico would have made major changes, and Lampkin and Co. did not want that.

D'Amico reportedly has been getting supportive calls and emails from around the state, including feelers regarding other top college positions. One of those posts included the top job at Hanover College, which a headhunter had approached D'Amico about. (The job went last week to Sue DeWine of Marietta College in Ohio). A community college in Florida also has expressed an interest in hiring D'Amico.

But don't expect her to fold her tents and retreat. Lawyers are pursuing her cause regarding the process and the outcome. D'Amico has friends in high places as well, including the governor's office and the four trustees who refused to vote for Snyder.

Word is spreading about Lamkin and the type of operation he ran -- an annual vacation to Italy on the dime of the Ivy Tech Foundation, which he heads, as well as family vacations on the same account. Lamkin and his cronies showed their true colors by how D'Amico was treated as a job applicant. The story is not over yet.

From what Holladay is writing, one can assume D'Amico planned to put an end to hiring state lawmakers and other politically-connected persons for jobs at the community college system, which would have been a welcome change. It currently employs House Speaker Pat Bauer, House Ways & Means Committee Chairman Bill Crawford and Rep. Craig Fry, along with former Senate President Pro Tempore Bob Garton. Holladay's allegations about Lamkin's alleged misuse of college funds are very serious charges, if true.

More Questions About Unintended Consequences Of SJR-7

The Star's Bill Ruthhart has a front-page story discussing the likely impact SJR-7 will have on the state's domestic violence laws respecting any unmarried couples who lives together as if they were spouses. Ruthhart specifically looks at the impact a broadly written gay marriage ban is having in the state of Ohio. He writes:

Justin McKinney was sniffing gasoline out of a milk carton when the woman he lived with in the small town of Richwood, Ohio, came home.

For some reason, McKinney got angry, chased her down an alley and kneed her in the stomach. Police had to use a Taser to subdue him. Prosecutors charged McKinney with domestic violence.

His attorney never argued that he didn't hit the woman, and McKinney was convicted last year in the February 2006 attack. But last month, an Ohio appeals court reversed the conviction because McKinney and the woman were not married.

To blame: Ohio's constitutional amendment banning same-sex marriage, which is similar to the measure that Indiana's General Assembly has been debating this year.

Two of Ohio's 12 appeals courts have ruled that the amendment prevents unmarried couples from receiving the benefits of marriage, including protection under the state's domestic violence laws.

In those appellate districts, which cover 23 of Ohio's 88 counties, prosecutors faced with scenarios like McKinney's can only file charges of misdemeanor assault instead of domestic violence, which can be a felony.

Opponents of Indiana's proposed amendment worry the same could happen here.

"No attorney, no constitutional law expert, no academic in the world can tell you how every court in the state of Indiana is going to interpret this amendment," said Kerry Hyatt Blomquist, legal counsel for the Indiana Coalition Against Domestic Violence.

"As in Ohio, there may be judges that will see no conflict between the amendment and our existing domestic violence laws. But also as in Ohio, there may be judges that will."

While Indiana's amendment is worded differently than Ohio's, it's language raises equally important doubts about its impact. IU Law Professor Aviva Orenstein demonstrated that fact at Wednesday's hearing on SJR-7 when she observed the lack of any clear definition for what the term "legal incidents of marriage" means. And contrary to the proponent's claim, Orenstein insisted the amendment would apply to legislative enactments and not just to a court's interpretation of the amendment because of the amendment's language extending its applicability to "any other state law."

Sen. Brandt Hershman's reaction to opponents' claims about the unintended consequences of SJR-7 is quite insulting. "This is willful ignorance on the part of the domestic violence community," he told Ruthhart. "They are pushing more of a social agenda than they are a legitimate concern." "There is little to no question that this amendment would have any impact on Indiana's current domestic violence law." The religious right's go-to guy on constitutional issues, Terre Haute attorney Jim Bopp, attempts to deflect the concerns as well. "The legislature, in the statute, has provided protection against domestic violence for people who are unmarried and have long-term relationships and live together," Bopp told Ruthhart. "That is perfectly legal under this amendment." Bopp, of course, is referring to a law the proponents of SJR-7 are currently trying to rework through SB 65. There seems to be little doubt that legislation was prompted by the legal developments in Ohio and its potential impact on SJR-7's fate.

At this time, I feel compelled to share a rumor an interested reader of this blog has shared with me. During Wednesday's hearing on SJR-7, retired attorney Don Sherfick shared with committee members the history of the federal marriage amendment upon which the language of SJR-7 rests. Sherfick noted an original draft of the FMA included language nearly identical to Indiana's SJR-7. As Sherfick explained in his testimony:

The implications of this issue are far-reaching because of the large list of things people like Congresswoman Linda Musgrave, sponsor of the parallel Federal Marriage Amendment say the term "legal incidents of marriage" includes. Regardless of how arguments over how close SJR-7 tracks amendments in Ohio, Michigan, or other states, and whether or not bad effects elsewhere might happen in Indiana, the key matter is WHAT SJR-7 itself has to say about our legislature's authority.

Lay the text of SJR-7 aside that of the original Federal Marriage Amendment as proposed and you'll quickly see that the first was copied almost verbatim from the second. And then know this: in 2004 even conservative Republican sponsors of the Federal Marriage Amendment were unsure and disagreed over the same central question I just mentioned. To make the matter crystal clear, they amended it by taking out the term "state law". Representative Musgrave and Senator Allard were quoted nationally as saying [quote]"We want to make it clear, without any ambiguity, that states do have a role in dealing with civil unions and benefits related to marriage."

Now let me return to the rumor which has been shared with me by a concerned reader. According to this source, some house members reportedly received a letter accusing Sen. Hershman of hiding the mistake he and others made in copying the original version of the FMA rather than the amended version. Based upon a conversation I've had with Don Sherfick, I believe this to be the letter he sent to all one hundred members of the Indiana House. One of the alleged recipients of the letter was House Republican Leader Brian Bosma. Bosma is reported to have directed the concerns raised in the letter to Advance America's Eric Miller, who in turn conferred with the AFA's Micah Clark. Clark reportedly urged putting out a preemptive response to the charge raised by Sherfick, but Jim Bopp is reported to have counseled against it.

The proponents were said to be extremely nervous going into Wednesday's hearing. Sherfick fully anticipated the proponents to have both barrels loaded ready to fire at him when he leveled the charge publicly at the hearing. Surprisingly, Bopp did not appear to testify as the proponent's leading constitutional scholar as he did when the amendment was heard in the Senate and none of their witnesses broached the subject. They all breathed a big sigh of relief when members of the House Rules and Legislative Procedures Committee did not question them about the matter, and when legislators failed to follow up even after hearing Sherfick's testimony.

The importance of the concerns raised by Sherfick cannot be understated. Is it not an outrage that we are about to add language to our constitution which may have in fact resulted from one person's mistake of copying the wrong version of the FMA and refusing to admit his mistake? And that single mistake could have a far-reaching impact on not only our state's domestic violence laws, but also any law impacting rights of unmarried couples. It is disappointing legislators didn't hold the proponents feet to the fire on this important issue. Sen. Hershman, Bopp or one of the other leading proponents should be required to address this question in public before any further action is taken on this ill-conceived amendment. I'm quite pleased reporters like Ruthhart are devoting a great deal of attention to the unintended consequences of SJR-7, but I also wish they would get to the bottom of the origins of its language.

Here is the comparison of the FMA and SJR-7 as discussed by Sherfick:

Before 2004 the second section of the proposed FMA said:

Neither this Constitution, nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Note the close/exact parallels to the corresponding part of SJR7:

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.

In mid-2004 the FMA proponents changed it to read:

Neither this Constitution, nor the constitution of any state, [deletion here] shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

Friday, March 23, 2007

Donnelly, Ellsworth & Hill Vote For Early Pullout From Iraq

If House Democrats have their way, American troops will be coming home from Iraq by no later than September of next year. While a handful of Democrats voted against the Democrat-backed resolution, every member of Indiana's Democratic delegation cast a vote in support of today's resolution, including Rep. Joe Donnelly (D-South Bend), Rep. Brad Ellsworth (D-Evansville) and Rep. Baron Hill (D-Seymour). The vote was 218-212 with just two Republicans voting with the majority. President Bush is threatening a veto if it survives the Senate.

Rep. Wayne Gilchrest (R-MD) and Rep. Walter Jones (R-NC) were the only two Republican who voted with the Democrats. The Redstate blog has already labeled them traitors, comparing them to Benedict Arnold. There were 14 Democrats in all voting against the resolution for troop withdrawal from Iraq.

Kenley Supportive Of Porter's Hate Crimes Bill

The AP's Deanna Martin has a story on Rep. Greg Porter's intention to reintroduce his hate crimes legislation next year. Sen. Luke Kenley (R-Noblesville) spoke favorably of the legislation. Unlike the religious right folks who've been fighting the legislation, Sen. Kenley actually took the time to read the bill. Quoting Kenley, Martin writes, "Sen. Luke Kenley, R-Noblesville, said Porter's proposal is better than laws in other states because it does not create a separate offense for hate crimes it just adds them as an aggravating factor." "I think this is probably a better way to go about it," he said.

Martin got the obligatory gay-bashing response from the AFA's Micah Clark. Martin writes, "Micah Clark, director of the American Family Association of Indiana, said all crimes should be prosecuted, regardless of whether the victim was chosen for a specific reason." "Clark also said sexual orientation and gender identity are different from some other categories included in Porter's bill because they involve a choice." "I don't think cross-dressers should be mistreated, but I don't think they should get special legal treatment because of the choices they're making," he said. "I've never met a former African-American, but I have met several former homosexuals."

The fundies just refuse to acknowledge a person's sexual orientation or gender identity is an innate characteristic by insisting it's a choice. But they still insist upon what they like to refer to as "special rights" for people based on their religion, which actually is a choice. Their actions create real harm to people like Vivian Benge. Martin shares her story with us:

Vivian Benge remembers walking in downtown Indianapolis a few years ago and having two men approach, hurling insults and threats at her for being transgender. Benge ducked into a mall to escape.

"I didn't even realize how they knew I was trans, but some other people had outed me to them," said Benge, who was born a male and has undergone surgery to become a woman. "They decided it was OK to hate this person and make threatening comments" . . .

Benge said sexual orientation and gender identity are not choices.

"I always knew that I was different," she said. "By the time I was 6, I was being chided for not being like the other boys."

"The hate crimes bill would have been a way for the state to send a message that this kind of behavior is no longer acceptable," she said.
Martin reminds us of the sad statistic: Indiana is one of only five states in the country without a hate crimes law. Porter tells Martin he hopes to revise the legislation next year. HB 1459 passed out of the House Courts and Criminal Code Committee by a 9-1 vote, but it died on second reading after Democrats decided not to call out it down because of a controversial anti-abortion amendment Rep. Jackie Walorski sought to attach to the bill.