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Friday, January 10, 2014

Ind. Law - "The more you have to explain a marriage amendment ..."

Supplementing this ILB post from earlier this morning, Columnist Dave Bangert has this piece today in the Lafayette Journal Courier:

Who knew, in 2011, when the Indiana General Assembly voted by overwhelming majorities — 4-to-1 margin in the Senate, nearly 3-to-1 in the House — that lawmakers would feel compelled to qualify what they’re thinking as they look to amend the constitution to include the state’s ban on same-sex marriage?

But it’s 2014. Three years later, lawmakers who rode a marriage amendment around the first turn with virtually no expectation of defeat now see the field gaining — if not already passing them. And they’ve been doing all they can to soften the personal and political responsibility of a question that they innocently — and conveniently — say should be a matter for the voters. * * *

But if it wasn’t clear before that HJR-3 is on shaky ground, House Bill 1153 was 2½ pages of stammering proof that the more you have to explain, the weaker your premise.

And that’s no position to leave a two-sentence constitutional amendment.

HB 1153 attempts to parse the proposed marriage question into what the General Assembly intends the constitutional amendment to be and what it doesn’t intend it to be.

Intended: Reaffirm Indiana’s existing law on marriage, which limits the definition to one between one man and one woman.

Not intended, according to HB 1153: To limit health benefits offered by private or public employers, to stop cities from adopting equal opportunity ordinances, to block anyone from terms of a will or power of attorney, or to affect Indiana’s domestic violence laws. * * *

General Assembly leaders, including House Speaker Brian Bosma and Senate President David Long, said they stood by the addendum to the marriage amendment, seemingly persuading themselves that they’d given themselves a constitutional out from HJR-3’s criticized second sentence: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

(Then again, Bosma famously offered this gem during a different fight in January 2012: “It’s not our job here to determine the constitutionality of something before we vote on it.”)

“I can’t imagine what they think they’re doing,” said Will McLauchlan, a political science professor at Purdue University who specializes in constitutional law. “I suspect they’re trying to deflect and assuage the concerns of many people about what those words in the proposed amendment are intended to do. That’s not going to work.”

McLauchlan said there could be a hope that a companion bill could give guidance about legislative intent to judges if and when lawsuits are filed. But hope doesn’t nail down a constitutional amendment.

“An amendment stands on its own if it’s put in the constitution. And that’s up to the courts to interpret later in any way they wish to do,” McLauchlan said. “What they’re trying to do, obviously, is something you don’t do with a constitutional amendment.” * * *

In November, I asked state Sen. Ron Alting, a Lafayette Republican who voted for HJR-6 in 2011, what he’d do if he could with a marriage amendment that seemed to be slipping out of the win column and into a no-win, emotional abyss of nastiness through November. His answer: “I wish it would go away.”

Bosma and Long could have gone that route. Should have gone that route. Still could go that route. Instead, they seem content to keep explaining — to take some of the sting out it, as Long told reporters Thursday.

But this isn’t the same as explaining away a botched school assignment. This is the state constitution.

How do you explain an amendment that rides up with a sidecar of qualifications and meant-to-says?

Posted by Marcia Oddi on January 10, 2014 08:36 AM
Posted to Indiana Law