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Thursday, March 22, 2007

Ind. Law - "3 top firms to legislators: Kill gay-marriage ban"

There are a number of stories today on yesterday's House Committeee hearing on SJR 7.

Niki Kelly of the Fort Wayne Journal Gazette's story includes these quotes:

Wednesday’s 3 1/2 -hour hearing focused almost solely on the intended and unintended consequences of the second section – 29 crucial words.

Opponents fear it jeopardizes domestic violence protection for unmarried couples – straight or gay; handcuffs future legislators from recognizing civil unions; and puts at risk domestic partner health care benefits offered by private companies or universities.

Mark Osowick, executive director of recruiting for Cummins Inc. – one the state’s largest employers – expressed opposition to the amendment because it could have a detrimental effect on recruiting talent.

“Simply put, SJR 7 is bad for the state of Indiana, and it’s especially bad for business in Indiana,” he said, noting that Cummins provides domestic partner benefits for its 5,500 employees.

“A crucial part of our success … is providing employees with a great place to work and a great place to live. Anything that makes Indiana less inclusive … makes it more difficult for us to compete.

“This sends the message that Indiana is not tolerant of diversity.”

Aviva Anne Orenstein, a law professor at Indiana University, called the phrasing unnecessary and vague. But most importantly, she said, it’s simply undemocratic.

“It restricts the legislature. Hoosiers in the future are going to be bound by Hoosiers today,” she said. “A future Indiana legislature could not mandate health benefits for same-sex couples even if they thought it was in the economic interest of the state.”

Then mothers of gay and lesbian children put a human face on the issue, saying that all of their children had chosen to leave the state because of its intolerant nature.

Marcia Neff said two of her sons are gay and did not choose their sexual orientation. They did, however, choose more accepting environments – in Madison, Wis., and San Francisco.

Sarah Patterson told about her lesbian daughter who moved to Pennsylvania – one of the 23 states without a constitutional ban on gay marriage – and now has three children with her partner.

“They drive a minivan, take their children to music lessons and regularly attend church. They are a family,” she said. “This is a family that could have contributed to Indiana. They won’t come back.”

Proponents of the measure had their own fair share of lawyers and experts.

Roger Bennett, a Lafayette attorney, said the language does not restrict private business or universities, nor does it limit future legislatures.

“All such charges I have seen are, to put it kindly, mistaken,” he said. “If you’re scared, blame the scare mongers, not the authors or supporters of this amendment.

“It’s difficult to respond to their accusations … in the sense that it’s always difficult to prove a negative.”

Curt Smith of the Indiana Family Institute said the amendment is important to pass before actions in other states to legalize same-sex marriage are brought to Indiana’s doorstep.

He conceded the language might affect at least a hundred legal incidents of marriage – though no definition of that term is generally accepted – but only in the sense that judicial power would be curbed, not legislative.

“It should be up to you. It’s the concern that unelected judges who are not answerable to the people make policy,” Smith said. “That’s where the separation of powers breaks down.” * * *

House Rules Chairman Scott Pelath, D-Michigan City, did not commit to taking any action, saying all options are open and legislators needed to weekend to consider the next step.

If the House passes the amendment in its current form, the issue goes to the voters at the 2008 general election.

Conventional wisdom has been that if the amendment has been changed it would start the process over again; meaning voters wouldn’t get a vote until at least 2010.

Pelath said there is a 1972 Indiana Supreme Court case that gives some precedent to putting the first paragraph on the ballot even if the language of the second section is struck.

Note: See this ILB entry from yesterday (immediately below) on the 1972 decision.

Lesley Stedman Weidenbener of the Louisville Courier Journal reports:

Citing concern about unintended consequences, a House committee chairman postponed action yesterday on a proposed constitutional amendment to ban same-sex marriage.

House Rules and Legislative Procedures Chairman Scott Pelath, D-Michigan City, said the "chances are pretty strong" the committee will vote on the proposal -- but not necessarily in its current form.

"I think members of the committee need time to meditate on this over the weekend, and I think we need to determine what the best course of action is going to be," Pelath said after a nearly four-hour meeting. "We're going to deal with this issue in one way or another in one form or another."

At issue is whether the proposed amendment would prevent existing laws or a future legislature from providing some marriage-like benefits to same-sex couples. * * *

critics of the plan say it ties the hands of lawmakers as well as the courts.

"Hoosiers in the future are going to be bound by Hoosiers today," said Aviva Anne Orenstein, a professor at the Indiana University School of Law. "That's not democratic."

Making changes in the amendment proposal could affect when Hoosiers get to vote on it.

Amendments to the Indiana Constitution must be passed by two consecutively elected legislatures before being placed on a general election ballot. The House and Senate have approved the proposal once and are considering it now for the second time. If approved, it would go on the November 2008 ballot.

The proposal's authors say if the language is changed at all, the process would begin again.

But Pelath said yesterday he's not so sure, citing an Indiana Supreme Court decision that he said upheld a proposed constitutional amendment even though it was approved by lawmakers in slightly different forms in 1967 and 1969. * * *

Yesterday, Kerry Hyatt Blomquist, chief counsel for the Indiana Coalition Against Domestic Violence, said she fears the language in the second section could lead a judge to dismiss domestic battery charges against a man accused of beating a woman simply because the couple isn't married. That happened in Ohio, where voters ratified a constitutional amendment that is similar in idea but worded differently.

"Section B of this amendment is vague, undefined and it's ambiguous," Blomquist said. "We have yet to see a proposed definition of 'legal incidents of marriage.' "

Mark Sniderman, a member of the Jewish Community Relations Council board, said the language means the legislature might be able to pass a law that, for example, created a domestic partnership with benefits for same-sex couples that were similar to marriage. However, if someone sued to stop the law, the amendment would keep the court from being able to enforce it, he said.

Much of the debate focused on the use of the word "construe" in the proposed amendment.

Roger Bennett, a Lafayette attorney and supporter of the amendment, said the court would be required to "construe" or interpret a law passed by the General Assembly only if it were ambiguous. Then, the amendment would prevent the court from determining that lawmakers meant to provide marriage-like benefits.

"All that's required is legislative clarity," Bennett said.

But Pelath said he's concerned that no law can be written clearly enough to avoid court interpretation.

Bill Ruthhart's Indianapolis Star story is headlined "3 top firms to legislators: Kill gay-marriage ban." Some quotes:
Three of the state's largest employers urged an Indiana House committee Wednesday to kill a proposed constitutional amendment banning same-sex marriage.

Representatives for Cummins and WellPoint told members of the House Rules and Legislative Procedures Committee the amendment would hurt their effort to recruit employees and could jeopardize domestic-partner benefits they offer. Dow AgroSciences voiced similar concerns in a letter.

"I think there's ambiguity on the question of benefit coverage, and mostly, I think we're also concerned about the message this sends," said Randy Brown, chief human resources director for WellPoint, an Indianapolis health insurer. "We want to send a message that Indiana is a welcoming state to any talented person."

Much of Wednesday's discussion echoed testimony heard by the Senate earlier this session.
Supporters, mostly from conservative groups and churches, spoke of the importance of protecting marriage and keeping activist judges from redefining its meaning.

Opponents, many of whom were university professors or members of gay-rights groups, talked about how the proposal would inject what amounts to state-sanctioned discrimination into the constitution.

But Wednesday's testimony from three of the state's top employers offered a new wrinkle in what has become one of the defining issues of this legislative session. None of the three had previously spoken out against the amendment, which legislators have been considering since 2004. * * *

Cummins, WellPoint and Dow AgroSciences, an Indianapolis-based biotechnology producer, together employ more than 10,000 workers in Indiana, offering the kind of high-paying jobs Gov. Mitch Daniels has made a priority in the state's job-recruitment efforts.

Rep. Scott Pelath, D-Michigan City, the committee's chairman, said he invited representatives from the governor's office to testify about the impact the amendment might have on economic development. They declined, Pelath said. * * *

After Wednesday's hearing, Pelath said he was no more or less sure of what the committee would do.
"As of now, there's no course of action that is committed to or ruled out at this point," Pelath said. "But we're going to deal with this issue one way or another in one form or another."

Note: The ILB made MP3s of the entire hearing (including the various speakers individually) and may post them this weekend.

[More] See also this AP story by Mike Smith, published full-length in the Lafayette Journal & Courier.

Posted by Marcia Oddi on March 22, 2007 08:19 AM
Posted to Indiana Law