Wednesday, April 11, 2007

AFA Fails Truth In Advertising Test

If the American Family Association of Indiana PAC were a business selling a product, it would have a lot of questions to answer to the FTC. Instead, it's just another religious right organization exercising its free speech rights by saying anything to stir up bigotry towards gays, including misrepresenting a legislator's vote against SJR-7. The full-page ad shown above ran in Rep. Terri Austin's hometown newspaper in Anderson (click to enlarge) and accused her of betraying her constituents by voting against SJR-7. As Austin made clear at the time she cast her vote, she supports a constitutional amendment defining marriage as between one man and one woman. She voted against the amendment because the proponents refused to remove a second paragraph, which imperiled rights other than marriage for Indiana's unmarried couples whether straight or gay. Here's what the AFA is telling Austin's constituents:
  • She betrayed her constituents by telling them she supported a "marriage protection" amendment by voting against SJR-7.

  • She voted for the same amendment in 2005 but never expressed opposition to the amendment until it got close to letting voters decide.

  • She claimed to have talked to "everyone" about the amendment but didn't talk to its author.

  • She claimed a "tearful concern about domestic violence when she had a clear legal opinion to the contrary that the amendment would not affect domestic violence victims."

  • She appeared to support marriage "only to be cynically used by Democrat leadership who clearly don't want Indiana citizens to vote on marriage."

  • She left the "definition of marriage in the hands of activist judges rather than the hands of Hoosier voters."

Let me make this point yet again. Indiana has already defined by statute the definition of marriage. That law has been challenged and upheld as constitutional by Indiana's so-called activist judges. Same-sex marriages were illegal before and after Rep. Austin voted against SJR-7. Nothing has changed on that critical point.

While it is true Rep. Austin voted for SJR-7 two years ago, concerns about the unintended consequences of the amendment did not surface until recently after courts began interpreting broadly written amendments in other states, such as Ohio and Michigan, to strike down domestic violence laws and domestic partner benefits for unmarried couples. That caused experts in those areas of the law to re-evaluate the meaning of the amendment's second paragraph. Experts on domestic violence laws in Indiana testified the amendment would adversely affect Indiana's current domestic violence laws. The legal opinion offered by the AFA was written by a an out-of-state proponent of state and federal constitutional amendments banning gay marriage, who was neither an expert on Indiana law nor without an ideological bias.

Although Austin was told by one of the lobbyists for SJR-7 there was no business opposition to the amendment, she learned when she attended the hearing that there was indeed opposition to the amendment from five of the state's top businesses--opposition which had not been expressed two years earlier when she voted for the amendment.

The AFA complains Austin didn't speak to the amendment's author, who presumably is Sen. Brandt Hershman (R-Wheatfield). The amendment was co-sponsored in the House by Rep. Eric Turner and Rep. Scott Pelath. Austin certainly communicated her sentiments to Pelath. It seems to me Hershman bears the responsibility for discussing member concerns with his designated House sponsors of both parties. If Hershman was unaware of Austin's concerns with the second paragraph, it is hardly her fault. And it was no secret after the hearing that Rep. Pelath himself had expressed grave concerns about the second paragraph.

The truth is that SJR-7 would have easily been passed out of committee and approved by the House if the proponents had simply agreed to limit its reach to a definition of marriage--a definition they say they don't want to leave to activist judges to decide. The proponents chose not to amend it because they want to use the issue for partisan political purposes in the next election. Reaching a bipartisan solution to the legitimate concerns expressed by nonpartisan experts was not in their interest.

So when the AFA tells Austin's constituents she won't allow Hoosier voters to "vote to preserve marriage", they are failing to disclose the pertinent facts which would allow her constituents to fairly judge her actions. Who is betraying whom? Is it not a betrayal of Indiana voters to attempt to mislead them into believing marriage is somehow in danger if they are not allowed to vote on SJR-7 and make it a part of our Indiana constitution? And is it not an even greater betrayal to the voters for the proponents to ignore known concerns with the "poorly drafted" amendment (in the words of Judge Robert Bork) and, instead, to urge a "take it or leave it" choice?


Anonymous said...

"That law has been challenged and upheld as constitutional by Indiana's so-called activist judges."

When did the Indiana supreme court rule on this issue? Wouldn't they have to finally rule sometime before everyone can finally claim the issue is dead?

Gary R. Welsh said...

The Court of Appeals had a 150 years of Indiana constitutional jurisprudence upon which to rely in its Morrison v. Sadler decision. When it comes to an equal protection claim, your better choice has always been federal constitutional grounds. There's simply nothing in the case law which gives anyone a real reason of hope for overturning Indiana statutes based upon our own state constitution. The proponents of SJR-7 can't point to a single decision of our Indiana Supreme Court to provide any basis for believing it could ever overturn Indiana's Defense of Marriage Act.

Anonymous said...

Isn't this ironic? AI is defending a legislator who has said repeatedly that she does not think homosexuals should be allowed to marry. And part of AI's defense is a belief that Indiana's Defense of Marriage Act will never be overturned.

And THIS is what you call a victory?

Anonymous said...

In realistic terms, stopping the amendment is what happened. Did I like everything the Dems voting 'NO' said? NO! But they voted to stop it.

Second, even if the first line passed, we have to realize that the second part is even more dangerous. It would preclude ANY laws that might help unmarried or same-sex couples up to and including civil unions. This is precisely what they wanted to do, because this right will be won piecemeal in Indiana.

It's a long struggle, but this amendment, unamended, would make it impossible for either the General Assembly or the Courts to help us.

I'll take a win however I get it. It doesn't have to be given to us by pure hearts or 100% zealots.

Gary R. Welsh said...

anon 2:31, Sorry to disappoint you with logic.

Wilson46201 said...

Wasn't it Bismarck who said that legislation is like making sausage -- one really doesn't want to know the details. With the WebNetRoots or whatever it's called, I was able to watch the Rules Cmte vote in the safety of my home (it was storming outside!) and hear the speeches. Not pretty!

Anonymous said...

I wouldn't count my chickens yet.

There's still third reading and conference committee time. Suspending the rules and amending SJR7 into an existing bill is not out of the question.

That's part of AFA's hope with this ad. I am told they have not targeted anyone else--yet.

If we can sneak through the session without this horrid bill resurfacing elsewhere, we will have dodged a bullet big time. And we will have much work to do before the next session.

Gary R. Welsh said...

A constitutional amendment cannot be amended into a bill. It must stand on its own.

Anonymous said...

Wilson... or someone, please post a link to where I can watch the committee vote online.


Edward Fox said...

It is important to pay attention to what is happening. It requires more effort and is less of a spectator sport than merely reacting to hot button issues, cheering for your team, and threatening those who dare to disagree with you, but it will help you to feel less betrayed as the legislation muddles through. (Please note that I did not say that you would not feel betrayed, just that you would feel less so; and you will know more about what to do about the betrayal.)

Terri Austin did not vote to kill the marriage discrimination project. She voted against a bill that is so troubled that no one can pretend that they know what the courts will make of it. She did not go to the hearing, but claimed to have listened to the whole recording and to have talked to experts on both sides. She got conflicting opinions, and concluded that no one could know what would happen if the resolution were adopted. That is a small step, but an important one. The people who insisted that she vote for the unknown were wildly irresponsible. Now she will feel a little of the "love" they usually reserve for GLBT folk.

The authors are clearly unacquainted with the judicial process in Indiana. They insist that if they tell you that they have an "expert" opinion, that is the end of the matter. This is probably why they do not like judges and malign them so frequently. Judges and courts work out the application of laws to individual cases, and in the process try to make sense of the nonsense that legislators enact, and resolve any conflicts between two laws that apply to the same case. In all the exchanges I have witnessed, not one of the proponents of SJR7 showed any recognition that they had to answer serious, well reasoned, well supported objections by leading legal and business lights as well as many other people. They demonstrated that they cannot comprehend that other people may have differing opinions and that those opinions very often have merit.

I am not sure I want to express a vote of confidence in the Democratic leadership, but they clearly do not want Hoosiers to vote on legislation whose principle characteristic is a turgid lack of clarity. As with Representative Austin, this is a small point, in some ways, but a crucial one. A legislator who votes for a bill he does not understand is a fool and a knave; those who knowingly blackmail legislators to try to force them to vote for the unknown are beneath contempt. There is no defense for insisting on unclear text in legislation.

The claim that Austin did not talk to Hershman is disingenuous. As has been noted, none of the proponents of SJR7 had any answer to the objections other than to insist that they had no merit. Given that they had obviously misrepresented the state of business opinion, no one with any sense would listen to such vapid assertions.

What happened was not a rejection of the marriage discrimination project, the attempt to make a positive grab to do away with all this nonsense about Americans being equal. What happened, and it is important, was that several legislators, who voted mindlessly two years ago, as AFA would have everyone do all the time, listened to objections. True those objections were not to the central excuse for the amendment; they were about the danger of enacting vague sweeping legislation; but two years ago a majority of legislators simply would not listen to any analysis or variant opinion. They heard the word "marriage" and would have voted against their own sister or grandmother; turns out they probably did. This time they listened. It is a small start, but it is a start.

Terri insists that she is as devoted as anyone in Indiana to preserving marriage from the evil hoards. Maybe now she will listen to people who try to tell her that Eric Miller, Micah Clark and Brant Hershman, just to name a couple, are not nice people; that they do not care too much about the truth; and that they just may not have the best interests of Indiana at heart. That is a conversation that we need to have with a lot of Hoosiers, not just legislators, in the next ten months.

Anonymous said...

Excellent analysis, Ed!

Anonymous said...

Eric Miller is telling his hoards, that a Constitutional Amendment may indeed be eligible for blasting onto the floor, as a conference committee report, or any other such silly vote. And he brags that he has the Attorney General ready to opine as such. NOthing from this AG surprises me.

It's unlikely he can get that done, but, it does give him promise, and eight months of bashing, pluls income, to continue. Hate sells in some quarters.

Idiots abound.

For further evidence of that, read John Ketzenberger's column in today's Star. It seems the SJR7 author and chief House sponsor have written threatening letters to the five companies who boldly stood up against the Amendment. The letters demand justification for the public opposition to SJR7.

Hateful, thy name is Herschman, and Turner.

Anonymous said...

Thugs for Jesus. I'm sure He's proud of His Advance America flock.

Anonymous said...

Where can I get one of those "Thugs for Jesus" bumper stickers? I have a few "In God We Trust" plates I wouldn't mind covering.