SJR-7 – The meaning of paragraph (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.

(Keep that passage in mind as you read the following).
Senate Joint Resolution 7 – The proposed Constitutional Amendment banning gay marriage and prohibiting same sex couples from being granted any of the legal incidents of marriage was passed by the Senate Judiciary Committee. A copy of the vote is here. It passed out of committee on a party line vote.

Advance Indiana and bilerico both have posts on the subject, particularly the dissembling in which proponents are engaging with respect to subsection (b) of the proposed amendment.

Micah Clark of the American Family Association has said:

SJR 7 does not prevent the legislature from creating civil unions, what it does do, is prevent an unelected, runaway judge from telling the legislature that it must reject 200 years of state law and centuries of common wisdom and embrace homosexual marriage. SJR 7 does not take away any rights that do not currently exist under state law. All SJR 7 does is allow the people of Indiana to decide this issue, instead of a court or an ACLU lawsuit.

Senator Lubbers, a proponent of the resolution, has said:

[I]t is my opinion that this resolution does not prohibit legislators from passing laws to provide new protections [based on sexual preference.] Subsection B of this resolution speaks to the powers of the judiciary and not the actions of the legislature. Likewise, I do not believe, based on the testimony I heard and my personal study, that SJR-7 prohibits the establishment of domestic partner benefits by employers.

Both of these statements ignore the pretty fundamental requirement that judges interpreting the Constitution are required to look at the plain meaning of the text. The text of SJR 7, SECTION 2(b) reads as follows (yes, I’m posting it again for emphasis):

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.

At it’s root, this means no law may be construed to require the legal incidents of marriage be conferred on unmarried couples. It’s remarkable that Mr. Clark and Senator Lubbers can, with a straight face, tell people that this passage does not tie the hands of future General Assemblies or that it does not prevent civil union laws. I suppose in a very technical sense, Mr. Clark is correct. It does not prevent the General Assembly from passing civil union laws. They can pass any damn thing they want. Courts will simply be powerless to enforce such laws.

I gave my interpretation of the proposed amendment several days ago:

But, the proposed Constitutional amendment goes much, much further than the current Indiana statute by prohibiting any Indiana law from requiring a legal incident of marriage to be conferred upon an unmarried couple. In other words, as I read the proposed amendment, if there is a right that is an incident of marriage, Indiana law is not permitted to extend that right to same sex couples. Think of marriage as creating a bundle of rights. This amendment not only says that the bundle can’t be extended to same sex couples. It’s saying that if there is a stick in that marriage bundle, same sex couples cannot be given the same type of stick. In my mind, that is simply abusive.

[tags]SJR7-2007, culture wars[/tags]

Comments

  1. Darryl says

    Doug —

    I talked about this today at length on my talk show in Bloomington. I think we as a state can look to Ohio for guidance of the repercussions of paragraph b. As Ohio has discovered, Domestic Violence laws are being contested, with abusers living in unmarried relationships saying the clause means the legislation cannot extend to them because of Ohio’s Constitutional Amendment.

    The Ohio Supreme Court heard a case in December, and a couple of the justices asked pointed questions of the prosecutor’s claim that the legislature did not intend to take away domestic violence protections, asking how is intent to be judeged of the voters who went to the polls? They also suggested that all they have access to is the language in the amendment.

  2. says

    Doug, I don’t know if you saw the AP story, but the wing-nuts rushed out Jim Bopp to save them on this issue and explain why it doesn’t mean what it really says. His argument essentially is that it only binds a court’s interpretation of the law and not the legislature’s ability to pass law. You and I both know that is nonsensical. The irony is that the offensive paragraph is added to the enumerated Bill of Rights in the Indiana Constitution. You use the example of the legislature passing a law and having it declared unconstitutional by a court bound by this amendment’s language. You could just as easily have a governor grant domestic partner benefits to state employees by executive order only to see it struck down by a court.

  3. says

    Rights are being defined by who is excluded.It’s a simple concept,but backwards from the Constitution,which assumes inclusion without ‘due cause’.It’s the ‘belief people’ vs. the constitutionlists.How did we even let ourselves get into such arguments? Now laws are being passed that state that the Constitution is invalid, if Im following the argument here.
    Also,aren’t laws applied generally rather than specifically,so that domestic violence laws are now in jeopardy? It’s hard for a non-legal mind to follow.

  4. Branden Robinson says

    Lou,

    A couple of thoughts on this:

    The legal strategy doesn’t seem all that subtle to me. The Republicans are setting things up so that when a test case comes before a judge, the judge can indulge in a little conservative judicial activism and strip rights away from gays…and women who should stay and home and cook and take care of the kids, and not squawk if hubby puts her in her place.

    Don’t believe me about evisceration of domestic violence laws being viewed as a side benefit to this? Read the words the fundie wingnuts live by:

    But I would have you know, that the head of every man is Christ; and the head of the woman is the man; and the head of Christ is God. (1 Corinthians 11:3)

    Therefore as the church is subject unto Christ, so let the wives be to their own husbands in every thing. (Ephesians 5:24)

    Let your women keep silence in the churches: for it is not permitted unto them to speak; but they are commanded to be under obedience, as also saith the law. (1 Corinthians 14:34)

    And if they will learn any thing, let them ask their husbands at home: for it is a shame for women to speak in the church. (1 Corinthians 14:35)

    Let the woman learn in silence with all subjection. But I suffer not a woman to teach, nor to usurp authority over the man, but to be in silence. (1 Timothy 2:11-12)

    Ponder what the above must mean to those who believe in the inerrancy of the Bible.

    Anyway, the idea here is to let the conservative activist judges do the Right Thing by the Inerrant Holy Bible, and tie the General Assembly’s hands from putting right what that judge tears asunder. Then, if the decision gets overturned by an appellate court, well, then, that will be the real judicial activism.

    The GOP will continue to run the same plays from this book over and over again for as long as their snake-handling base eats it up.

    My second thought is that this is even less a legislative or judicial strategy than it is an electoral one. The idea is to get this BS on the ballot for 2008 so as to turn out the base.
    For the actual politicians, actually stripping rights away from people is just gravy. Power comes first.

  5. says

    Branden,

    Yes, I think you have a good understanding of what rigid conservative Christian Doctrine is,and you present empirical evidence.You have pointed before in this blog the difference between impirical evidence and sermons,and it was an insight of application and use.
    Im off to Mass in a little while and I have always believed that since God gave us Freedom of Choice in matters of faith, can I ,as a citizen,advocate anything less for my fellow man in the domain of Law and Government made by Man? So people of faith aren’t necessarily restrictive of others’ rights.

  6. Branden Robinson says

    Lou,

    There are indeed many religious folks who appreciate the values of a secular society. All of the Abrhamic religions seem to suffer from a radical contingent that claims to be the true representation of the faith, and they wage just as much war against their secular co-religionists as they do the infidel and non-believer. The Jews have the ultra-Orthodox, the Muslims have the “jihadists”, and Christians have the dominionists.

    Yet all three of these faiths seem to have trouble showing some backbone against their own radical minorities. I wish I knew why.

  7. Don Sherfick says

    Doug, this is an excellent treatment and discussion. You may also want to look into the history of changes to the Federal Marriage amendment (FMA) which SJR7 closely tracked. Or at least until changes were made to restore state legislative authority and get rid of the term “unmarried couples or groups” SJR7 KEPT the old language, and as I explain in my post on http://www.bilerico.com this morning http://www.bilerico.com/2007/02/002199.php, this pokes a big hole in both Hershman’s and Jim Bopp’s claims.

  8. says

    Bush is forever saying that democracies do not invade other countries and start wars. Well, he did just that. He invaded Iraq, started a war, and killed people. What do you think? Why has bush turned our country from a country of hope and prosperity to a country of belligerence and fear.
    What happened to us, people? When did we become such lemmings?
    The more people that the government puts in jails, the safer we are told to think we are. The real terrorists are wherever they are, but they aren’t living in a country with bars on the windows. We are.

  9. says

    Antibush –

    Um, I think you are only on-topic if you want to enter into some kind of civil union with the president, or something else involving “the legal incidents of marriage.”

    Or, comments on Daylight Savings Time are always considered in excellent taste, here…

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