Bil Browning

Calm down. Indiana's marriage amendment is still dead.

Filed By Bil Browning | January 29, 2008 1:43 PM | comments

Filed in: Marriage Equality, Politics
Tags: amendment, Indiana, legislature, marriage, New Jersey, same-sex marriage, SJR-7

[Jan 29 - 5:18pm - Updated at the end]
[Jan 30 - 11:00am - Updated again to reflect new information]

I've taken some flack on various Indiana mailing lists and blogs for saying that Indiana's constitutional amendment to ban same-sex marriage is dead for the year. They cautioned that I should couch my speech until after the session is over.

Now some folks are using the Indiana House Republicans' most recent maneuver to try and prove that the amendment isn't ready for a coffin and suggesting that my analysis is wrong. Instead, they've proven my point.

SJR-7 is dead.

Some quick background

Indiana law says a proposed constitutional amendment must pass two consecutively elected legislatures before being put to referendum. The language must remain the same. If even a period is out of place, the process has to start all over again. The fastest an amendment can pass in Indiana is three years; it can take up to five.

The amendment passed the House and Senate in 2005. There was an election in 2006 and the amendment could be voted on again. In 2007 it passed the Senate but stalled in committee in the House.

This year is the last year they can pass the amendment - unchanged - to advance the legislation to the ballot referendum. If it doesn't advance, proponents have to start over again from the beginning.

So far, the amendment has passed a Senate committee (even though it doesn't have to pass the Senate again since it did last year), but not the full Senate. The Speaker of the House assigned the amendment to committee, but the committee chairman said it would not get a hearing.

No hearing = no advancement. I stand by what I wrote; SJR-7 is dead.

The latest round

Now House Republicans have decided to give the issue one last college try. They're attaching the language of SJR-7 as an amendment to legislation about property taxes. (Strangely enough, also a constitutional amendment itself.)

The gay community is in an uproar now that SJR-7 is back and will pass and we'll be facing a referendum next year. I'm calling bullshit.

The amendment has to pass with the same language. By adding it to other legislation, by default you're changing the language.

Even if it does pass

More than likely, SJR-7 will pass the Senate again this year. It passed in committee and it's passed every other time it went in front of the Senate - by large margins. Without the House's approval though, the Senate's vote doesn't matter. That's why they're doing it again this year - as a way to try and pressure the House to hold hearings.

While it could pass the legislature this year as an amendment on an amendment, it still wouldn't be on the ballot this November.

Instead, it would have passed the House once with the same language. The Senate would also have to pass the property tax amendment with SJR-7's text attached to it. Then the clock would start over. Both amendments would have to pass a separately elected legislature next time as well. Then we make it to the ballot box.

What will probably happen

The Speaker will rule the amendment not germane to the property tax legislation. End of story.

He wants to show movement on property taxes. Democrats can always claim Republicans are trying to hijack property tax momentum to pick on gays and lesbians. While the Republicans will try to claim Democrats sabotaged property taxes, the public is no mood for chicanery.

With the country sweeping Blue by the moment, they'd love a chance to tie Indiana Republicans to the legacy of BushCo.

My advice? Call your representative. Tell your story and urge them to decry the right-wing tactics of attacking the LGBT community to try and drive voters.


But don't fall for the "The sky is falling!" routine. If we're going to call out Republicans for hyperbole and grandstanding, we shouldn't be either. Especially not in snotty ways only meant to establish themselves as the sole authorities to be listened to.

Let's remember that while the right makes money off of "cross-dressers and homosexual" alerts, we make our money off of Republican hijinks. Look for the fundraising to start soon.

[UPDATE #1 - 5:18pm]

Well that didn't take long for two predictions to come true.

I flipped over to my e-mail inbox to find this e-mail from a former Indiana Equality leader to the local gay mailing list:

On a related topic....

It is--and always has been--in our community's best interest to have the Lambda Consulting guys (Mark St. John and John Joanette) in the statehouse, watching out and lobbying for us. They're pros, with extensive knowledge of the legislative process and the cast of characters in the Indiana legislature, personal acquaintance with a large number of legislators on both sides of the aisle, and excellent relations with the leaders of a number of progressive, civil-rights, and family-issue organizations on the state and national levels that can be counted on to lend assistance when needed.

The fact that we found out so quickly about this latest shenanigan on the part of the anti-GLBT Right and its creatures in the legislature is due to Lambda Consulting's presence in the statehouse with eyes and ears open, having already mapped out the opposition's options and likely moves, and with access to channels of information that most other folks don't.

They can work for our community and remain on guard for our interests because we pay them--through Indiana Equality--to do that invaluable work. If you have the ability to host or co-host a house party to benefit IE or the IE Education Fund, think seriously now about sharing the glory of having helped keep these guys working for us during these times of peril and of opportunity.

There's prediction #1. Time to fulfillment: long enough to flip from my browser to my inbox.

The fundraising has started before the alarm bells are finished ringing.

Then IE sent out an alert that reads:

At 2:29 PM today, the Indiana Senate passed the "Marrriage Discrimination Amendment" - Senate Joint Resolution 7 (SJR-7) by a vote of 39 to 9 (two Senators were excused).

Voting NO were nine Senators - Breaux, Broden, Errington, Lanane, Rogers, Simpson, Sipes, Smith, and Tallian. Please take a minute to thank these brave senators for their NO vote on SJR-7 (click on their names to be taken to their websites).

Senator Glenn Howard was excused due to health reasons, and would have been a 10th NO vote. Senator Ford was also excused for health reasons.

Passage of SJR-7 by the Senate keeps this harmful legislation in play and sets the stage for a possible ballot initiative this year. If approved by the electorate, SJR-7 will forever write discrimination into the Indiana Constitution, affecting thousands of Hoosier families.

This bill now makes its way to the Indiana House of Representatives for consideration. Leadership in the House has talked about not hearing SJR-7 in 2008, but we need your help to to keep up the pressure on our elected officials and ensure that we keep this bill from progressing any further!

Watch your e-mail for up-to-the-minute information on SJR-7
and ways to take action in the coming days.

Bookmark the Indiana Equality blog for more details as they unfold.

If you think our efforts are making a difference, would you please support Indiana Equality with a small gift using our secure donation website? Our opposition is well-funded and it takes contributions from people like yourself to keep the pressure on and to fight the fight! DONATE NOW.

And there is prediction #2. Time to completion: About 45 minutes

It passed the Senate like everyone knew it would. Notice the fundraising appeal even though the House says they won't hear it.

Then again, when has our leading community organization actually shared that bit of good news about the House committee with their members? Oh. That's right. They haven't.

It's hard to ring alarm bells and clang the fundraising bucket that way.

[UPDATE #2 - Jan 30 11:00am]

Gary Welsh of Advance Indiana is reporting:

House Assistant Republican Leader Eric Turner sacrificed Gov. Mitch Daniels' constitutional amendment to limit property taxes on homeowners last night by trying to tack the marriage amendment on to it. Speaker Bauer pulled consideration of HJR-1 last night, effectively killing it in the House. Now we know that the House Republicans place a higher priority on promoting discrimination against gays than finding solutions to the problem of rising property taxes.

The Speaker pulled the entire amendment - including the inserted language of SJR-7.

Now I hate to point out the obvious, but that would have to be counted as Prediction #3. Time to completion: About 6 hours

I'm sure the fundraisers will let us know that sometime soon. No rush though. After all, who needs all of the updates instead of just the scare tactics that'll bring in more cash? Is that why there hasn't been important announcements to listserves and their mailing list?

You'll have to count on us darn bloggers, I guess. After all, Advance Indiana, Blue Indiana, Taking Down Words, Hoosier Access, Masson's Blog, and others have all reported the same thing:

The marriage amendment is dead. The rest is Weekend at Bosma's Bernie's.

Be vigilant. But don't be hoodwinked by scare tactics either...

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Good luck on killing that evil bill in Indiana. Trust me, you don't want Kentucky's DOMA amendment.


Don Sherfick Don Sherfick | January 29, 2008 5:18 PM

Bil, I truly hope that you are right in your certitude. You're aware that I have been considerably less ready to put the nail in the coffin both here and elsewhere. I won't belabor the overall point of contention, but do want to point out one area where, after studying how the amendment Representative Eric Turner has offered (and which will be dealt with today...Tuesday) makes the text of the so-called "Indiana Marriage Protection Amendment", part of HJR1, which is a proposed constitutional amendment concerning property tax.
You assert that:

"The amendment has to pass with the same language. By adding it to other legislation, by default you're changing the language."

and you go on to say:

"While it could pass the legislature this year as an amendment on an amendment, it still won't be on the ballot this November. Instead, it would have passed the House once with the same language. The Senate would also have to pass the property tax amendment with SJR-7's text attached to it. Then the clock would start over. Both amendments would have to pass a separately elected legislature next time as well. Then we make it to the ballot box."

There would be very little doubt about that IF the text of the proposed property tax amendment were being amended to incorporate the text of the amendment dealing with marriage. But arguably that is not what is happening. We have a single RESOLUTION. As amended by Turner's amendment, it talks about two separate amendments, and doesn't mix their respective contents. So there is a non-frivolous argument to be made that, should the House end up accepting Turner's amendment and passing the amended resolution, the effect would be that the "Marriage Protection Amendment" would have been passed by both Houses of the General Assembly in two separately elected sessions, and could go to the voters. The property tax amendment would continue its journey.

To recap, because we have one resolution covering two separate amendments, a novel, but not necessarily invalid or unconstitutional situation, the matter is simply not all that clear.

I'm aware of some additional procedural convolutions, including the possibility of conference committee, which while I would consider them improbable, nonetheless are not reasonably off the table.

I agree with you that if Speaker Bauer were to make a ruling that the amendment was out of order for not being germane (a concept different from the "different amendment language" concept rooted in the constitutional amendment process), his ruling were challenged) and he were sustained, that would effectively end the matter of Turner's attempts.

That's my understanding. I am not being an advocate either way as to the legal/procedural matters involved. I am simply saying that from my own reading, I must continue to say that the certainly isn't there.


I really do hope that you are right and that it is dead; it really is what should happen for the community.

But we still need to stay on guard. Very recently we have seen the power of the other side's lobby and they still have that political muscle. We have to make sure that that muscle isn't flexed again when the whole community isn't expecting it.

Political muscle can bring the sky down.

Don Sherfick Don Sherfick | January 29, 2008 7:08 PM

At least Kevin Raider, and likely other media, have reported that Speaker Bauer will not call up HJR1 for second reading this evening, and if so, no opportunity to amend. The property tax amendment possibilities are not dead because of Senate action. SJR7, dealing with marriage will come over from the Senate and although HJR8 (the same text) is dead, the question of whether or not Representative Pelath will entertain it in committee (he has said he will not) continues. There also remains the reasonable possibility that an attempt to put two amendments (marriage and property tax) in the same resolution will be repeated. So essentially the same questions that I feel are as not as clear as they may seem to some will remain, at least through the end of February.

There has been very little likelihood that SJR7 would survive since last July. But when the consequences are so dire, "very little" is cold comfort.

I have not heard what seems to me an authoritative analysis of the proceedings to date. It is wrong to confuse the text of the resolution with the text of the proposed amendment. Thus if it were legal to combine two resolutions, there would be no problem with one being the present marriage discrimination amendment and the other a tax amendment at another state of the process.

It is my understanding that such combination is strictly against Indiana law, and practice. Bauer should rule it out of order. But most rulings may be overruled by a vote of the house in one way or another. And if that happens, do not expect the State Supreme Court to thwart the will of the majority on some flimsy pretext such as that the act was unconstitutional.

The Republican leaders are clearly prepared to do absolutely anything to pass this evil text. They have staked a lot on it and were sure a couple of years ago that they had a winning strategy and victory was within their grasp. Now it is all slipping away. It is very likely that they will lose (not that we should sit on our hands for the next couple of weeks). It is most likely that their window of opportunity has passed; that they will never again be able to motivate the numbers necessary to move this bigotry forward. With their failure people will begin, as they already have, to see this crusade for what it was, bigotry and a lust for power that were prepared to trample people's basic right to life, liberty, equality and the pursuit of happiness, for their own ends. That does not auger well for the political future of these men and women.

I can only credit desperation for the stupidity of trying to mix this up with the tax issue. "Marriage" is an abstract concept that can be used to move Hoosiers, and other people. "Taxes" are very concrete in the loss of homes, equity, and disposable income. Few Hoosiers, faced with doubling, or tripling property taxes, will choose to sacrifice the possibility of solving that problem in favor of "protecting marriage"; those who have begun to see through the sham of such "protection" certainly will not, and they are not likely to forgive someone who puts their home at risk for such a reason.

Too bad they've already hedged their bets by moving on to the next wedge - mexicans.

We can discuss that it is illegal all day long. It doesn't change the fact that Republicans are using it to rally the troops with fear.


SJR7 can't be dead!

I think I'm going to put out a mini-YouTube documentary entitled "Dr. Alex Love: How I learned to stop worrying and love SJR7". It'll be an in-depth look at the peculiar strain of Stockholm Syndrome that arises out of being constantly threatened with being immortalized in a Constitutional document, how gays hate the intention but love the attention, and how we're beholden to these amendments even when they're gone.

Oh, wait, that's an awesome post idea. Don't steal it, Bil!

Don Sherfick Don Sherfick | January 30, 2008 11:31 AM

I think Alex is onto something. I didn't realize that I and others who have taken on the cause for what we thought was for the benefit of other folks in situations like me and my partner feel are unjust, namely SJR7, has simply been a sign of growing dependency for a "fix" on some of the more detailed aspects of things like the second sentence to satisfy my otherwise meaningless (for me) and aging existance. The fact that I will no longer be relevant to anyone when and If SJR7 haunts me constantly, but I've gotten over things before. I can do it again, I'm sure.

Pshaw, Don. There's always Tony Dungy. *grins* I think that's still your most popular post on the site. Personally, I love your humorous columns. :)

Zach Adamson | January 30, 2008 2:41 PM

Here is my thought.. On one hand, its "too good to be true" going through my mind that it might be all over makes me strangely uneasy. It seems like I hardly remember a time when we weren't fighting SJR7. But Golly how great it would be if it were true.
But, let us consider this logically in a game of what if.
As Ive said before, I wouldn't put anything past these right wing nut jobs. I am constantly amazed at the spectacular contortion acts they come up with to keep their hate filled agenda spewing forward. How they are able to keep it going is a mystery. So nothing surprises me anymore with these guys. I've woken up in the morning, having a perfectly lovely day, and *Blam!*, I find they have found some strange loophole and the fight is on again.
But suppose it happens again that way? What if they have a "secret weapon"? What if they changed the rules while we weren't looking... What if..
It seems that it would be best if we error on the side of being prepaired for ANYTHING, than to drop our guard down and be surprised. Better Safe than sorry I always say... Well .. I usually always say anyway...Err.. I've said it before.. that's all that's important..
All's I'm say'n is.. I'll sleep much better after the session is over in March. Till then, I've got one eye on West Market Street at all times..