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Sunday, December 15, 2013

Ind. Law - "Lawmakers stand against social tide in promoting HJR 6"

The Sunday Fort Wayne Journal Gazette editorial section focuses on HJR 6. Some quotes from the lead editorial:

The elephant in the room as the General Assembly prepares to convene is one of its own creation. House Joint Resolution 6 lumbers into the Indiana Statehouse next month destined to create a distraction from the business the GOP-controlled legislature would prefer to have voters see in an election year.

In wading into the social issues battlefield their former party leader once warned against, GOP legislative leaders set the scene for a conflict they undoubtedly wish they had avoided. Moreover, what they do in the coming session ultimately will make no difference. Same-sex marriage is coming to Indiana. Look for its arrival by one of these routes:

The U.S. Supreme Court: The court in June overturned the federal Defense of Marriage Act, which prohibited recognition of same-sex marriage. While the justices declined to assert a constitutional right for two men or two women to marry, lawsuits working their way through courts across the nation could produce the precedent-setting case. It was a law banning interracial marriages that resulted in the 1967 Loving v. Virginia decision. * * *

A state lawsuit: In his dissent in the DOMA decision, Justice Antonin Scalia charged that the majority opinion purported to support states rights, but actually provided a road map for challenges to state bans. One such challenge could overturn Indiana's ban, which exists whether it is written into the constitution or not. * * *

Public opinion: Sixteen states and the District of Columbia now allow two men or two women to marry. Poll after poll shows growing support for gay marriage.

In Indiana, a recent survey by WISH-TV and Ball State University found 58 percent of respondents oppose HJR 6; 48 percent want to legalize same-sex marriage.

The editorial then retells the story of Minnesota:
If Indiana lawmakers stick to their plan to "let the electorate decide", they risk repeating the example of Minnesota, where a Republican-initiated push for a constitutional referendum backfired on its supporters. When the proposed amendment went before voters there last November, it drew Democratic voters out in force, defeating not only the referendum but also costing the GOP its majorities in both the House and Senate.

Energized by their success in defeating the constitutional amendment and electing Democratic majorities, same-sex marriage supporters pushed for legalization of gay marriage. The bill was approved and signed into law in May.

Indiana's GOP leaders are probably too smart to repeat the mistake of their Minnesota brethren. Concern for their own electoral success inevitably will overcome enthusiasm for banning same-sex marriage and they won't risk pulling young and liberal voters to the polls.

In time, however, those voters will seek to undo the current ban and join the growing list of states choosing to extend rights instead of restricting them.

In a separate editorial headed "A modest proposal to satisfy all," Karen Francisco, JG editorial page editor, suggests that GOP leaders can satisfy all sides:
... by shoving the resolution down the road. Lawmakers will approve a same-sex marriage measure, but not the same one they approved in 2011. Indiana law prescribes a constitutional amendment process in which identical language is approved in two separately elected sessions. By altering even a single word of HJR 6, lawmakers reset the clock. The revised resolution would have to be approved a second time in 2015 or 2016 to make it to ballots in November 2016.
ILB: Maybe. Maybe not.

I've just reread Art. 16, Sec. 1:

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).
I don't see the word "identical". Moreover, I've just looked at our Supreme Court's 1972 opinion in Roeschlein v. Thomas (Feb. 24, 1972). The new Judicial Article had been challenged, and the Supreme Court in Roeschlein upheld it (granting transfer and adopting the COA opinion), despite challenges to the procedures followed by the House and Senate in passing it. The challengers' assertions included: "the House and the Senate in voting upon the proposed Judicial Amendment did not vote upon the same 'proposed amendment or amendments' as required by the language of Article 16, ยง 1." However, the Court said:
In view of the decision we reach, the character of the changes does not constitute a material issue of fact and therefore we do not need to determine whether the changes are substantial or unsubstantial.
The Court's reasoning was that the resolutions had been authenticated by the presiding officers of the House and Senate, and the Court, deferring to the separation of powers, would not look beyond this.

Thus my "maybe not."

My point is that adopting the language of HJR 6 this year without the contentious second sentence might not necessarily mean starting over. It would be up to the GOP leaders to decide whether the now truncated amendatory proposal was still to go to the voters in November, or whether it was instead to be considered a reset. If the choice was made to put it on the ballot, then, as with the Judicial Article in 1972, there likely would be a legal challenge.

Posted by Marcia Oddi on December 15, 2013 08:56 PM
Posted to Indiana Law