Suppose you were trying to accomplish something by amending the Indiana Constitution and were looking for the words to do it in the clearest and best way.
A like-minded colleague hands you a piece of paper and says: "This looks like what you want. It was once worded differently, but there were concerns it wasn't clear and didn't do what was desired. So it got changed. Here's the change; please be careful not to confuse it with what it used to say."
But you decide to ignore the advice and go with the older version anyway.
That, in a nutshell, is what Senator Brant Hershman did in writing SJR-7, using the proposed Federal Marriage Amendment (FMA) as his pattern. He rejected corrective language that no less than conservative Senator Wayne Allard and his House Colleague Marilyn Musgrave (both Colorado Republicans) had put into the FMA. Senator Hershman knowingly kept defective language but now claims it is crystal clear. The devil is in the details:
By early 2004 many conservative legal minds involved in the FMA had come to the conclusion that the term "state law" in the original version kept not only "activist" judges from creating civil unions or bestowing similar benefits, but also barred state legislatures from doing so. President Bush, Vice-President Cheney and other Republicans said that this was going too far, and that state legislatures ought to be able to enact such legislation if they saw fit to do so. As a result, the authors took "state law" out of the FMA. As quoted by the Boston Globe in March 23, 2004, chief sponsors Allard and Musgrave said:
"We want to make it clear, without any ambiguity, that states do have a role in dealing with civil unions and benefits related to marriage."
At the same time the term "unmarried couples or groups" came out of the FMA because of related concerns.
So why in 2005 did Senator Hershman, aware of the changes and the reasons for them, choose to stay with the original language when drafting and introducing SJR-7 into the Indiana Legislature? Why would he say the SJR-7 language was clear when Allard and Musgrave said it needed to be changed to make it clear? Why did he insist to the Indiana Senate that SJR-7 would still let the legislature enact civil unions, but refuse to use language that the FMA authors said would clearly produce that result? And what is his lingering affinity for the term "unmarried couples or groups", despite its also being discarded in the FMA? The answer seems obvious: His real intentions don't square with the language he has chosen.
Why aren't our legislators asking these kinds of questions, instead of just swallowing vague general claims that "legal experts" say there's "no problem" with SJR-7? Why aren't the media and print reporters doing their homework and digging into the same issue?
If this were a consumer product issue the statements being made by the makers of the product would be carefully scrutinized for misrepresentation if not outright fraud. Does a constitutional amendment affecting Indiana's own very Bill of Rights deserve any less?
For those of you who would like to compare the texts of the FMA and SJR-7, see below:
Before 2004 the second section of the proposed FMA said:
"Neither this Constitution, nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups"
Note the close/exact parallels to the corresponding part of SJR7:
"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".
In mid-2004 the FMA proponents changed it to read:
"Neither this Constitution, nor the constitution of any state, [deletion here] shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."
The significant FMA changes were NOT reflected in SJR7.