Chris Douglas

The Big Lie III: "Terms of Art" and other Social Conservative Red Herrings

Filed By Chris Douglas | February 15, 2007 6:55 AM | comments

Filed in: Living, Marriage Equality, Politics, The Movement
Tags: constitutional amendment, Indiana, LGBT civil rights, marriage, New Jersey, SJR-7

Hoosier social conservatives have called in their out-of-state hired guns, this one in the person of Chris Stovall, an attorney out of Arizona, who publishes in this morning's Indianapolis Star. (Arizona, incidentally, land of Goldwater western conservatives, voted down their own attempt to void the Constitution's guarantee of equal protection of gay and lesbian citizens.)

Stoval says: ' "Construed" is a well-understood term of art. It describes the judicially determined meaning of a statute or constitutional provision ambiguous on the question at issue." Then he proceeds to reveal how some Indiana courts have construed the word "construe." (Emphasis added.)

Did you get that? The meaning of the word "construe" is asserted by none other than Stovall himself to be the product of judicial interpretation, not a word with an inherent statutory or constitutional definition. Indeed, one suspects that Stovall is already borrowing wording from the kind of judges that he and his kind have in the past attacked, and in the future intend to attack, as "activist."

The word "construe", easily, can be reconstrued when it serves the purpose of the social conservative. They have only to land a legal challenge in the court of a social conservative judge willing to construe the word "construe" as that provided by at least one on-line legal dictionary: "to determine the meaning of the words of a written document, statute or legal decision, based upon rules of legal interpretation as well as normal meanings."

According to that definition of construe, if a statute extends a legal incident of marriage to a same sex couple, whether it is called marriage or not, SJR-7 prohibits a judge from determining the meaning of the statute's words even if based upon normal meanings of those words. In other words, under this legal definition of "construe", a judge cannot allow even the clear intent of that statute.

With that in mind, in years to come, while we might do our best to argue the wording of the amendment is vague in spite of its apparent clarity, we know that the social conservatives will argue that only an "activist" judge would read a law extending a legal incident of marriage to a same sex couple as constitutionally permissible.

Go home, Stovall. You're no constitutional scholar. We know what you're up to. You're a social conservative with an agenda of intolerance, dressing yourself up as an expert.

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Don Sherfick | February 15, 2007 8:09 AM

Right on, Chris!

Stovall quotes the Indiana courts as saying that where the language of a statute is clear and unambiguous, there is nothing to construe. That's true enough as it goes, except, to the best of my knowledge, we've never had a situation in Indiana where they were under something, like SJR7, giving them specific restrictions on how NOT to construe something.

you should go read all the comments attached to that letter to the editor. Even Micah Clark has chimed in with what he calls "facts"