Quorum Busting in Indiana History

On a lark, I did a search on “quorum” in the Brevier Legislative reports, and the first thing I came across was from February 1871. Thirty-four Republicans resigned so that the Democrats could not pass an apportionment bill that apparently would have redistricted in a way that was very detrimental to the Republicans.

The House Democrats did not, apparently, resist the notion that they couldn’t do business with fewer than 67 members of the House present; but, as part of the discussions, they threw it in the face of the House Republicans that the Republicans had apparently ratified the Fifteenth Amendment to the U.S. Constitution in the absence of a quorum of the House.

This article out of the Indiana Magazine of History (assuming the link works) gives some historical information about quorum busting in the Indiana General Assembly. In addition to the 1871 incident, the Republicans withdrew in 1865 to resist the Militia Bill (giving militia members the right to choose company commanders and the General Assembly the right to appoint certain generals). And, the Democrats had resigned in 1869 to resist the 15th Amendment. (The article I was reading was from 1913, so it wouldn’t have information about quorum busting after that date.)

The Constitutional provision in question is Art. 4, sec. 11 which provides:

Section 11. Two-thirds of each House shall constitute a quorum to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members. A quorum being in attendance, if either House fail to effect an organization within the first five days thereafter, the members of the House so failing, shall be entitled to no compensation, from the end of the said five days until an organization shall have been effected.

Not sure if the House Democrats are committed enough to opposing Right to Work to resign (as opposed to merely remaining absent); but I wonder what RTW proponents would do in response if that happened.

Indiana Constitution: Article 1, Section 7 – 8

A long time ago – about 4 years ago – I started doing posts on the Indiana Constitution. A few of you mentioned liking that, so I thought I might continue on with that “series.” So, we’re up to Article 1, section 7:

Section 7. No person shall be rendered incompetent as a witness, in consequence of his opinions on matters of religion.

My understanding is that, back in the 19th century, it wasn’t uncommon for judges to allow challenges to witnesses based on their non-belief in the hereafter; on the grounds that, if they swore to tell the truth but didn’t believe in divine retribution, then the oath wasn’t effective and the witness couldn’t be relied upon to tell the truth.

I did a quick search of the report of the debates from the Indiana Constitutional convention of 1851 and couldn’t find relevant discussion; but presumably someone came to the conclusion that, even with the oath, god-fearing witnesses weren’t necessarily reliable and, without the oath, atheists and Unitarians might find the truth from time to time.

Article 1, Section 8 goes along with 7 and states:

The mode of administering an oath or affirmation, shall be such as may be most consistent with, and binding upon, the conscience of the person, to whom such oath or affirmation may be administered.

The point of the exercise, obviously, is to impress upon the person swearing or affirming the importance of telling the truth and generally wake them up to the fact, Hey! This is important.

Indiana Constitution: Article I, Section 6

Article I, Section 6:

Section 6. No money shall be drawn from the treasury, for the benefit of any religious or theological institution.

This provision is generally what is known as a Blaine Amendment. The Blaine Amendments were generally passed out of a fear of the Catholic Church. Many Protestants had a fear of the incoming masses of Catholics and were afraid that the Catholics would take over the schools.

A prominent case involving this provision was State ex rel. Johnson v. Boyd, 28 N.E.2d 256 (Ind. 1940). It involved a situation where three Catholic schools educating about 800 students in Vincennes were going to close in the 30s. The City adopted a resolution and essentially assumed operation of the schools under much the same framework as had existed when the schools were formally designated as parochial schools.

In addition to other pictures the school rooms in each of said buildings had hanging on the walls, in view of said students, a picture of Jesus, The Holy Family, The Crucifixion, and George Washington. They also each have an American Flag and a Holy Water fount, in which is kept Holy Water for the use of the pupils. While teaching the teachers wore the characteristic robes of the orders to which they belonged and the sisters always wore a rosary and crucifix in view of the pupils.

On the grounds near each of said schools there is located a Roman Catholic Church, a rectory or Priests’ Home and a Sisters’ Home. Each morning immediately prior to the beginning of the school the pupils of each room were caused to attend at the nearby church where they were given religious instructions for thirty minutes by the parish priest. This particular service is said to be voluntary. So far as shown no pupil attending any of said schools has refused or failed to attend such morning services for religious instruction.

The teachers were all Catholic Sisters and Brothers who wore th e dress of their religious orders while teaching.

Surprisingly, the Supreme Court found no violation here. They said that as long as the teachers held a valid license and taught state curriculum, it didn’t matter that the teachers expressed their religious beliefs or that the school facilities were donated by religious institutions.

My quick review of the Westlaw annotations didn’t show any rulings by state courts under this provision of the Constitution that declared some government practice unconstitutional. However, there were one or two federal court decisions that did. So, this provision seems mostly toothless.

Indiana Constitution: Article I, Section 5

Article I, Sec. 5 of the Indiana Constitution:

No religious test shall be required, as a qualification for any office of trust or profit.

This is obviously modeled after Article VI of the United States Constitution which reads, in part:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

This language was also present in Indiana’s Constitution of 1816 at Article I, Section 3.

This concern in the United States may well have related back to the Test Act of 1673 in England or similar acts. The Test Act of 1673 required “all persons filling any office, civil or military, to take oaths of supremacy and allegiance, to subscribe to a declaration against transubstantiation, and to receive the sacrament within three months of taking office,” specifically:

I do solemnly and sincerely in the presence of God profess, testify, and declare, that I do believe that in the Sacrament of the Lord’s Supper there is not any Transubstantiation of the elements of bread and wine into the Body and Blood of Christ at or after the consecration thereof by any person whatsoever: and that the invocation or adoration of the Virgin Mary or any other Saint, and the Sacrifice of the Mass, as they are now used in the Church of Rome, are superstitious and idolatrous…”

And, once again, I think the folks who founded our state and federal constitutions were still keenly aware of the upheavals caused by the intertwining of church and state, particularly in the 16th – 18th centuries. Fine doctrinal points such as whether bread and wine literally turned into blood and flesh during the mass or whether the food products merely symbolized blood and flesh were not merely matters for idle scholarly debate. They were issues for which people killed and died.

Indiana Constitution: Article I, Section 4

Indiana Constitution: Article I, Section 4:

No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.

In 1893, the Indiana Supreme Court declared characterized the separation of church and state as “the crowning glory of civil government among men. The Court noted the separation in the U.S. Constitution and in most states, but said that it was especially true under the Indiana Constitution that:

The law has known no religious creed, no religious opinion, no religious doctrine, no standard of belief in matters pertaining to religion. Our state constitution, framed by wise men, and adopted by the people, has still more securely placed us out of the reach of those fierce and bloody struggles arising out of a difference in religious opinion in former times by declaring that “all men shall be secured in their natural right to worship Almighty God according to the dictates of their own consciences,” and that “no law shall in any case whatever control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience;” and that “no preference shall be given by law to any creed, religious society, or mode of worship; and no man shall be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent.” And that “no religious test shall be required as a qualification for any office of trust or profit.” These provisions of the fundamental law not only take away all power of the state to interfere with religious belief, but they leave the citizen perfectly free to repudiate the faith and belief he once professed and adhered to, and adopt a new creed and faith, differing from that of the church to which he belonged; or he may repudiate his old belief and faith without adopting any new one; and these changes he may adopt as often as to him may seem proper, and the law will protect him in it. In other words, the law allows every one to believe as he pleases, and practice that belief so long as that practice does not interfere with the equal rights of others.

Smith v. Pedigo, 33 N.E. 777, 778-779 (Ind. 1893).

From time to time, you will hear proponents of intertwining government and religion complain that there was no intent by the Founders of the federal government to separate church and state. I believe that they did so intend. But, putting that aside for a moment, the text of the Indiana Constitution seems to provide much clearer textual support than the federal Constitution for the proposition that government simply has no business dealing in religious matters.

Maybe I’m just misremembering, but I can’t recall any discussion of this provision when the matter of Speaker Bosma’s sectarian prayers as official business of the Indiana House of Representatives was being argued and decided. The taxpayers of Indiana have apparently spent $350,000 to assist the House of Representatives to maintain the right to conduct sectarian prayer in its chambers. I know that rights have a way of getting watered down as the courts consider them, but still it sure feels like I’m being asked to support a ministry when tax dollars are being spent to provide a forum for a minister to sing “Just a Little Talk with Jesus.”

Indiana Constitution: Article I, Section 3

Article I, Section 3 of the Indiana Constitution:

No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.

I couldn’t find much of anything in the debates on this one. Once again, however, this provision emphasizes the concern of the delegates to ensure that the government didn’t get in the business of telling people how to worship.

Indiana Constitution: Article I, Section 2

Article I, Section 2 of the Indiana Constitution reads as follows:

Section 2. All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences.

Scanning the debates, I found some quibbling about whether “secured in” was the appropriate phrase as opposed to something like “possess.” The debate had to do with whether this was just an affirmation of the “notorious principle” that was intended to tie the legislature’s hands in interfering with the freedom of worship or whether the legislature would be required to take some sort of affirmative action to secure the peoples’ right to worship as they might choose.

But, the general principle is pretty clear: people should be left alone to worship as they see fit.

Indiana Constitution: Article I, Section 1

I don’t know that I’ll have the fortitude to continue this project to the end, or even give it a fair start, but it has occurred to me to take a look at the Indiana Constitution one section at a time. We are citizens of this state, and we ought to have some knowledge of how our state is constituted.

Indiana Code, Art. 1, Sec. 1:

Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

There is discussion on this provision in the debates of the Indiana Constitutional Convention. There was an interesting remark from a Mr. Pettit of Tippecanoe County who apparently objected in that he did not believe men were equal. “There can be no social equality between the laboring man and the man of letters,” he apparently said. There was also some delay in the Convention in adopting this provision while the matter of slaves and admission of blacks into the state was decided upon. Some delegates felt like such a provision could not be introduced into the Constitution if the same document also excluded blacks from living in or owning property in the state.

Ultimately, of course, the provision was adopted. One delegate argued that, under the laws of man, of course, men were not equal; but under the laws of nature, which this document was to reflect, men had equal rights. He was not greatly concerned with whether the section was adopted — the laws of nature would remain the same regardless of what this document may say, but he preferred adoption out of respect for Thomas Jefferson and the Founders who they were copying and because he believed it right to attempt to reflect the laws of nature. And, in the democratic spirit of the day, the distinction between “men of letters” and laborers likely received a chilly reception.