Bil Browning

Amended SJR-7 could still advance?

Filed By Bil Browning | March 18, 2007 9:54 AM | comments

Filed in: Marriage Equality, Politics
Tags: Advance Indiana, constitutional amendment, Indiana Law Blog, Lambda Legal, marriage, Pat Bauer, SJR-7

[ED NOTE: This story has been updated at the end of the post]

I'm a little late on this story, but I wanted to try and check out the facts and get some other opinions. Facts, however, seem to be in short supply in this case.

When I was writing my post about the article quoting Pat Bauer about SJR-7, a few words in one of the early paragraphs caught my attention. Surely it didn't say what I thought it said... I skipped pointing it out until I could investigate further...

Proponents of the amendment have said that if any of the language changes, it would restart the lengthy process of amending the constitution. But House Speaker Patrick Bauer, who has consulted attorneys on the matter, said the section that specifically bans same-sex marriage could still advance even if another provision is removed.

"I think that might be the case, but we'll see," said Bauer, D-South Bend.

Sadly, it's looking as if that might just mean what it says. If Part B of SJR-7 were to be removed, Part A could still end up on the ballot in 2008! (It will have passed two consecutively elected General Assemblies.)

Advance Indiana quickly picked up the story and he quotes the Indiana Legislative Insight:

But if that sentence is removed, does that mean that the Constitutional amendment referendum is derailed?

Since the language of the amendment itself would be unaffected, you can expect some to argue that it should still be allowed on the 2008 ballot (and we've heard that there are already some legal memos floating around supporting that perspective). But there are also some who suggest that any alteration in the language of the Joint Resolution itself would serve to prevent the measure from being placed before Hoosiers for ratification . . . and you can expect a legal firestorm over how all this will shake out procedurally.

I agree with Gary that this tactic would definitely cause "a legal firestorm." (I'm reminded of a title that a friend of mine gave to SJR-7 - "The Lawyer Employment Act of 2007") Gary doesn't seem to put much stock in this tactic, but Marcia Oddi at the Indiana Law Blog has a different take when she refers to the ILI quote:
I don't think so. Why would proponents challenge putting the proposed constitituional [sic] prohibition against same-sex marriage before the voters, even without the second sentence, if that is what ended up being passed? The prohibition in the first sentence gets the job done.

So what do we really know? Nothing. There's no precedent for an action of this type - it's never happened before. All other constitutional amendments have been substantially changed - not just had a second section deleted. While Marcia doesn't think those in favor of SJR-7 would file in court, surely to God someone from our side would! (I'd imagine Lambda Legal since no Hoosier organization has enough money for a court challenge.)

What are the chances of this happening? Who can say? We know the right wing is desperate to have this on the ballot in 2008. With so many people disenfranchised with the religious right government we currently have, they're in a tizzy to find a way to bring out conservatives during the gubernatorial and presidential elections. Will they go this far to try and win an election?

And most importantly, what does this mean for our community? Will we be facing a referendum in 2008? Can we win the referendum? Have we been out-manuevered again in the Statehouse?

I have tons of questions. Anyone have any answers?

[UPDATE] The Indy Star has an article online now from Louisville Courier-Journal columnist Lesley Stedman Weidenbener that concludes with:

Proponents of the measure say any change means it can't go on the ballot in 2008. Two consecutively elected legislatures must approve the same amendment, they say.

But Bauer says he has talked with attorneys who have a different interpretation. They say that if the first part of the amendment stays the same -- the section banning same-sex marriages -- that part could go on the ballot.

That's an issue that would almost certainly end up in court. But it would all be moot if the House decides to stick with the original language. We could find out on Wednesday.

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I don't have answers, but I have plenty of speculation...

It seems to me, as a friend put it yesterday, that Pat Bauer has found a way to "thread the eye of a needle."

A court challenge is all but guaranteed. This maneuver, should it come to pass, would set a precedent in Indiana Constitutional law. It would be negligent of those with standing to file suit not to with such huge questions of constitutional importance at stake.

I really don't know enough about con law to draw my own conclusions yet. But as of right now, this idea seems as possible as not to me. Particularly when you consider the makeup of our state Supreme Court, who would be the final arbiters of constitutionality on this.

Don Sherfick | March 18, 2007 12:58 PM

All very interesting stuff, almost better than Desparate Housewives, or maybe I should say Heroes, depending on one's viewpoint on SJR-7. Given its overall limitation on rights and the second sentence that nobody agrees over and which Hershman "could-have-written-differently-but didn't-and-he-knows-why", all of SJR-7 ought to just go a historical trash bin. Whether or not the "salvage for parts" operation Bil's post addresses becomes a booming business or put in bankruptcy by the Indiana Supreme court will make me, for one, stay closely tuned.

"salvage for parts" operation
That's a darn good way of labeling this, Don. It's just a desperate tactic by the right in the face of a turning battle.

I wonder what the chances are they'll actually try this. Of course, no one knows right now. But that's what makes this interesting, eh?

Marla R. Stevens | March 19, 2007 2:58 AM

My take on it is the same as Jerame's friend. Bauer was between a rock and a hard place, believing that he'd be unelected and/or lose his slim majority if they didn't bring SJR-7 for a vote yet equally screwed if they did due to the expected fundie voter surge (who'd vote heavily Republican) if it landed on the ballot. If Bauer could have his vote but the court then keep the thing off the ballot, he'd be sitting pretty with everyone but the savviest of queers, who he doesn't really care about anyway.

I would hope that the court would apply the spirit of the rule -- the tradition that any change disqualifies the whole kit-n-kaboodle. That's the way everyone's played it for as long as I can remember -- and that goes back three decades including specific memory of education and gambling measures that had partial changes in the second round that were treated as disqualifying the whole.

Marla R. Stevens | March 19, 2007 3:05 AM

I find it terribly disturbing that no one has planned for a legal challenge component of the fight as that has practically been a given so many of the states so far having gone to court over these things at some point in the process.

I expected a certain level of infighting, I expected to have to be reasonably flexible about fiscal accountability, but I can't say that I expected to encounter something this grave that I would have to characterize as gross incompetence.

Given the rumored beyond reasonable sorry state of the fiscals, the previously reported problems with mission undercutting, and this latest revelation, I can only hope that the new I.E. leadership steps up to the plate fast.

Marla R. Stevens | March 19, 2007 3:11 AM

As for legal groups who should take this on, I'd say the ICLU owes us this one, having been so damned rash as to have gotten this ball rolling in the first place against sane advice from many sides -- even from their own national office. As far as I'm concerned, they cannot shoulder enough of the burden of this fight to compensate for having picked it.