Don Sherfick

Would SJR-7 be constitutional? yes, but......

Filed By Don Sherfick | February 23, 2007 7:19 AM | comments

Filed in: Living, Marriage Equality, Politics, The Movement
Tags: Indiana Constitution, Purdue Exponent, SJR-7, SJR7, unconstitutional

Yesterday Bil posted and quoted extensively from an item written in the Purdue Exponent by Thomas Nolan, a sophomore in the School of Mechanical Engineering. I applaud and agree with Nolan's opposition to SJR-7 as being repugnant to the very principles embodied in the Bill of Rights of our Indiana Constitution. But I must take issue with something he doesn't ever quite literally say but seems to strongly imply: that being what he calls a "law", and therefore subject to that Constitution, SJR-7 would itself be unconstitutional. He's obviously much more civic-minded than I was as a sophomore in Purdue's School of Electrical Engineering way back in 1958, but my 1971 IU Indianapolis Law School Constitutional Law professor would disagree with that conclusion. Here's why:

The Indiana Constitution is the highest law in our state. It has a section, Article 16, on how to amend it, but that section is just procedural. It places no limits on what can be in the amendment itself. An amendment can contradict something that is already in the Constitution, and the courts may be left with reconciling the two, usually having to say that the most recent amendment trumps the older language, for better or for worse.

So even though SJR-7 might, as I certainly agree would, do violence to the "equal protection" language currently in the Indiana Constitution, that still wouldn't make it unconstitutional. I worry sometimes that some folks are complacent about this issue because they think the Indiana Supreme Court could just throw SJR-7 out on constitutional grounds. Not so at all. I wish it were, but it simply isn't. Not as far as Indiana constitutional law is concerned. But there is a little more to the story:

If the question were whether or not SJR-7, if enacted, were unconstitutional under the Federal Constitution, I would certainly argue that it is. A federal district court in Nebraska has already ruled that way concerning Nebraska's " marriage amendment". What will happen on appeal is yet to be decided.

Again, my hat's off to Thomas Nolan at Purdue in his conclusion that SJR-7 ought not to be put anywhere near the Indiana Constitution, let along in its Bill of Rights. It's bad, ambiguous, defective, stupid, and motivated at its heart by the darkest kind of ignorance. But it would almost certainly be upheld as constitutional under Indiana law. I have high hopes that he and his generation will be a pivotal force in helping assure that question doesn't have to be decided.

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I don't think that Nolan meant to imply that it was unconstitutional. He said that it was bogus (are the kids using that word again? I remember it was outdated slang when I was young....) and that since legislators think that they need it to get around the bill of rights, that that's a sign that it is "repugnant to the very principles embodied in the Bill of Rights of our Indiana Constitution". I don't know of anyone who thinks that SJR-7 would be unconstitutional under Indiana law.