Don Sherfick

"Read The Fine Print": Part II - SJR7 and the fresh eggs dilemma

Filed By Don Sherfick | February 02, 2007 8:30 AM | comments

Filed in: Living, Marriage Equality, Politics, The Movement
Tags: amendment, Brandt Hershman, Indiana Constitution, Indiana legislature, judges, legislators, same-sex marriage, SJR7

Wednesday I re-commenced a series designed to try and put SJR7, the so-called "Marriage Amendment" proposed to become part of the Indiana Constitution, into more "non-lawyer friendly" language.

To begin, let's forget about SJR7's second paragraph for a moment (a tall order for many of us these days) and take a look at an analogy:

You are a cook under contract to a restaurant. Your contract says "I agree to abide by the Master Cookbook". The Cookbook begins with a front page that says: "If any recipe in this book conflicts with this first page, this first page shall govern." The first page continues: "Under no circumstances shall a recipe be construed to require the use of fresh eggs." You turn to a recipe for yellow cake and it says: "Fresh eggs must be used to make yellow cake". What do you do? Think about that for a moment.

Now let's look at the second paragraph of SJR7 and make some substitutions:

The second paragraph of SJR7 as proposed says:

"This Constitution or any other Indiana law shall not be construed to require that marriage or the legal incidents of marriage be conferred upon unmarried couples or groups."

Let's shorten that momentarily for this exercise and just say:

"This Constitution or any other law shall not be construed to require SOMETHING"

Now, going back to our cookbook: The cook becomes a judge; the Indiana Constitution becomes "the Master Cookbook", or more specifically, its front page . A given recipe becomes "any other Indiana law". The judge (cook) is obliged to follow the Constitution (Master Cookbook front page), which trumps any state law (recipe) if there is a conflict. In this case the law requires SOMETHING (the use of fresh eggs), but the Constitution (Master Cookbook front page) says it CAN'T be interpreted that way.

If the cook (judge) can't "construe" the recipe-law that way (to REQUIRE SOMETHING) then, in effect, isn't the author of the recipe (the legislature) effectively prohibited from requiring that very SOMETHING ("fresh eggs")?

If that recipe/law REQUIRES that same-sex (or any unmarried) couples receive some or all of the same rights and benefits that married couples enjoy, then isn't that recipe/law against the Master Cookbook front page/Constitution?. In other words: Unconstitutional?

This is the legal dilemma posed by the second section of SJR7. Senator Hershman and other proponents continue to insist that the legislature retains the authority to grant civil unions and/or related benefits, and that SJR7 only muzzles "activist judges". Does it really? Or do the good Senator and his colleagues have some egg, fresh or otherwise, on their faces? If you were the judge, dear reader, what would YOU say?

Next Week: A bit more concerning "construed" and those nasty "activist judges". In the meantime, I'll take my eggs scrambled, thank you.

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Don, we should assume from Senator H's comments that the state will step right up to change the civil rights language to extend protection to LGBT hoosiers, and at the same time grant civil unions. Oh,'s Indiana. Sorry...

Indiana better look north - a ruling just in that the "protect marriage" vote obliterated any rights to domestic partner insurance in state and local governments, or state universities - thousands of families, many with children, just lost their benefits. So the stay at home parent (and the child, if the child was born by the stay at home parent), are now adding to the already 46 million uninsured americans.

What a country.

Don Sherfick | February 2, 2007 5:06 PM

Thanks, Julien. My attention had been called to the Michigan item earlier today. Senator Hershman's response before the Indiana Senate Judiciary Committee to comments as to what was happening in other states was to simply say (in addition to, in essence: "Don't worry, that can't happen with SJR7" (as his nose grew a few millimeters longer with each word), that the other states had amendments with different language. True enough in some cases, and perhaps in some instances enough to make a difference. I frankly haven't looked at the Michigan amendment for a while, so won't jump to a conclusion either way. However, it would seem that the language of SJR7 could easily be construed broadly enough to put any domestic partner benefits of an arm of the state, be it a county, municipality, or educational institution, in serious jeopardy.

I really liked your cookbook analogy, Don. Great way to "simplify" the issues. Keep up the good work!