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Friday, March 16, 2007

Ind. Law - "House to consider gay marriage amendment" [Updated]

Mike Smith of the AP reports that SJR 7 will receive a hearing in the House:

A proposed constitutional amendment to ban same-sex marriage will get a key hearing before an Indiana House committee next week. But a provision critics say could have unintended consequences could be removed, a top lawmaker suggested Thursday.

Proponents of the amendment have said that if any of the language changes, it would restart the lengthy process of amending the constitution. But House Speaker Patrick Bauer, who has consulted attorneys on the matter, said the section that specifically bans same-sex marriage could still advance even if another provision is removed.

Here is the text of SJR 7:
SECTION 1. The following amendment to the Constitution of the State of Indiana, which was agreed to by the One Hundred Fourteenth General Assembly and referred to this General Assembly for reconsideration and agreement, is agreed to by this the One Hundred Fifteenth General Assembly of the State of Indiana.


Section 38. (a) Marriage in Indiana consists only of the union of one man and one woman.

(b) This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.

The proposed new Sec. 38(b) is problematic - see this ILB entry from Feb. 1, 2007, and this one from April 4, 2005, as well as this long list of ILB entries referencing SJR 7 over the past two General Assemblies - remember SJR 7 first passed in 2005, in the second year of the 114th General Assembly, and must be passed again in this, the 115th, General Assembly (in either this year or next), before it may be submitted to the voters.

We keep reading from the supporters of SJR 7 that the amendment must pass two General Assemblies in the same form, and that if one word is changed, you'll need to pack it up and start over. But where in the Constitution does it say that? What exactly does Art. 16 of the Indiana Constitution, the Article that deals with constitutional amendments, provide?

Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.

(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.

(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.
(History: As Amended November 3, 1998).

This is fairly vague as to the nitty-gritty. What about case law?

It turns out there are very few Indiana Supreme Court rulings on the procedure to be followed in amending the Constitution. The ILB has been unable to find a case touching on this specific matter. The closest I came was a case where the description of the constitutional amendment on the ballot outlined only part of its provisions. The Court ruled that was ok.

So where does that leave us? Here are my thoughts so far.

What would be the result if this General Assembly passed a version of SJR 7 that provided only:

Section 38. Marriage in Indiana consists only of the union of one man and one woman.
What would happen next? The General Assembly would need to enact ballot language - a bill doing that is pending as SB 289. [But see below]

The question of amending the Indiana Constitution by adding a new Section 38 to the Bill of Rights, to read as set out in the revised SJR, would then appear on the ballot. Voters would vote.

Would they vote for it, since the prohibition is already in the statute law?

If the amendment was ratified, would it then be challenged because it did not pass two sessions in the same form? [Remember, in my example, the language submitted to the voters: "Marriage in Indiana consists only of the union of one man and one woman." has indeed passed two General Assemblies.] Presumably such a suit would be brought only by opponents of any such constitutional amendment, as a victory would result in the Court invalidating the amendment.

[More] My description of SB 289 is not correct. In past years the General Assembly has enacted ballot language. See, for example, SEA 36 from 2004. This year, it looks like the General Assembly is making an effort to delegate this role to the Indiana Legislative Council and their word, literally, is to be law. Specifically, the new language provides:

The legislative council has absolute discretion to determine the contents of a summary prepared under this section. A person may not bring an action in any court based on the exercise of this discretion.
In the cases I have just finished reviewing, the most frequent challenge to a constitutional amendment is to the ballot language. One can bet that the validity of this handoff to the Legislative Council, if it is enacted, will also be challenged, despite the language prohibiting any challenge to the ballot language that results. If one could in the past challenge in court the ballot language written by the General Assemby, one wonders how the General Assembly can prevent such a challenge by delgating the responsibility to the Legislative Council?

[Updated at 5:00 PM] Advance Indiana quotes Ed Feigenbaum of Legislative Insight today as writing:

But there are also some who suggest that any alteration in the language of the Joint Resolution itself would serve to prevent the measure from being placed before Hoosiers for ratification . . . and you can expect a legal firestorm over how all this will shake out procedurally.
I don't think so. Why would proponents challenge putting the proposed constitituional prohibition against same-sex marriage before the voters, even without the second sentence, if that is what ended up being passed? The prohibition in the first sentence gets the job done.

Posted by Marcia Oddi on March 16, 2007 01:40 PM
Posted to Indiana Law