Don Sherfick

The last SJR7 hearing: some unreal remarks at a "non-event"

Filed By Don Sherfick | January 28, 2008 9:49 AM | comments

Filed in: Marriage Equality, Politics
Tags: amendment, indiana marriage amendment, marriage, sjr-7, sjr7

Whether or not I testified at a non-event last Thursday morning before the Indiana Senate Judiciary Committee against SJR-7 (the so-called "Indiana Marriage Protection Amendment") may be a valid point of debate, I guess. Gary Welsh of Advance Indiana would insist that I did, because Article 16 of the Indiana Constitution says that a proposed amendment need only pass each house of the legislature twice in two consecutively elected legislatures. Since the Indiana Senate already did that in both 2005 and the "long" session of the current biennium in 2007, he says there was really no need to hold either a third hearing or take it back to the Senate floor for a third vote. John Schwantes echoed this view on Indiana Week in Review, and Gary contends the Senate majority counsel has said the same thing.

I don't know for sure. On the other hand, the name of the game in the Indiana General Assembly seems to be that if something makes it through only one House in the "long" session, it has to start all over again in the "short" session. At least for ordinary bills and resolutions. Maybe that is different for proposed constitutional amendments, but until now the issue simply hasn't been given any thought. Anyway, that's really not my point in writing this morning, as you'll see past the jump.

Whether or not what happened last Thursday had any real legal significance, the proponents were there with their usual stuff and had opponents followed calls to simply boycott the hearing there would have been counterbalancing of what SJR7 had to say. I suspect the result would have been an outcry against how Indiana Equality had dropped the ball completely. You just can't please some folks ever, I guess.

(In the interest of full disclosure, I am affiliated with the IE legislative effort, although I appeared as a private individual and my remarks did not necessarily reflect everything the organization advocates. I also am a regular contributor to this site, as now IE's, and so I guess I am also part of the blogging community that both my TPB editor Bil Browning and Gary have termed responsible for the real underlying strides made on SJR7. Sometimes that gets a bit awkward. But I'm coping... I think.)

My point in writing is not to recapitulate what happened at the hearing, whether or not it was an "event", but to observe a couple of things. First, it continues to astound me that supporters of SJR7 have managed to stonewall the fact that their own "legal scholars", to whom they vaguely refer but have yet to produce in person (I think I know why) are not of one mind on some key issues over what the measure means. For example, the fact that archconservative Judge Robert Bork, who wrote the book about "strict construction", was a key drafter of the federal amendment language used in SJR7, yet amazingly denounced before Congress his own handiwork as "poorly drafted." (By the way, we owe Gary Welsh and Ed Fox a big debt of gratitude for first bringing Bork's damning statement to light last spring.) I've talked about that on this site several times before and won't bore you again here with the details.

The closest thing SJR7 supporters have dared to do to betray this self-defeating facet finally occurred Thursday when Senator Brandt Hershman begrudgingly admitted that, well, yes, there were two version of the Federal Marriage Amendment (the second one cleared up problems with the first, per Bork's recommendations, but what Hershman introduced didn't pick up the "fix") but that he'd now looked at them and they really weren't all that different.

Huh?!? One refers to state laws and the other one doesn't? And that doesn't make a pretty fundamental difference? I guess I need glasses.

And is reasoning for why not? Well, he says, that epitome of all sinister groups, the ACLU, said it thought the change made in the FMA wasn't much better than the unchanged version. Well, DAH... yes... they thought both were discriminatory for denying equal protection concerning marriage rights. What the ACLU thinks in that regard has nothing to do with the subject of ambiguities. And I think Senator Hershman well knows that. But I guess it sounded good to those who just think we ought to ignore these kinds of internal contradictions and just rubber stamp SJR7 and send it to the voters. I mean the ones who will have to carry their picture ID's in one hand while lugging a shopping bag full of law books into the polls to try and figure out what the heck all that "legal incidents of marriage" and "construed to require" stuff really means.

But Alliance Defense Fund attorney Chris Stovall, who has been her before and who also won't touch the internal disagreement thing with a ten-foot pole, flew back in from Arizona to tell everyone that all this talk about the language not being clear was just a diversion. He warned that if we started worrying about what this or that word or phrase in our legislation and amendments might be interpreted, the whole process would grind to a halt.

Well, here is at least one long-time lawyer who thinks that it should... at least until those trying to deny the inconvenient history of drafter discord is brought fully to the light of day. Our legislators owe nothing less to the people of Indiana.

NOTE: A premature and shortened version (without title) of this piece went up earlier and rather quickly pulled down when I recognized my error. I understand that some folks who got it by RSS feed may have been confused by that and possibly in any attempts to comment. My apologies for any confusion or inconvenience.

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You're right about these fools who can't interpret the words they write. Hershman is a fool and he's been caught in a lie and he knows it. That or he really is too dumb to understand the laws he's been elected to write, vote upon, and understand. Let's hope the folks up in the northern part of the state aren't so inept they keep electing an illiterate to the office.

But I have to take exception with your characterization of the events surrounding the hearing. I believe only Gary called for a boycott of the hearing, not "the blogs". Many of us have been around IE enough to know that the euphemism "the blogs" really refers to "those blogs which regularly criticize, contradict, or otherwise disagree with IE." IE doesn't talk about "the blogs" unless "the blogs" are not on their side.

The hearing on Thursday was one for the professionals only. I'm glad there were calls for the PUBLIC not to show up in the galleries. I think that sent the proper signal for this waste of time hearing. Regardless whether it was necessary legally, it was moot because the House Rules committee chairman Scott Pelath had already announced he was not giving SJR-7 a hearing and that for all intents and purposes it was dead this year. So a big public showing to a dead-end hearing wasn't what was needed. But the pros still needed to show up to give testimony because that's what we do. We make our case cogently every time we get a chance.

And while it's true that it's nearly impossible to please Gary, that's not true of "the blogs" in general. IE has gotten praise when it's done well. When they toot their own horn over something that most of us know is not of their own making, they're not going to get kudos here. I don't hold ill-will toward IE, but there are some elements within it that could use a little sunshine and holy water.

Don, I'm not sure that when you say things like "the blogs" and lump them together under a speculative dialogue, then chastise them for never being pleased, that you're "coping" so much as lamenting. You almost seem sorry to be a blogger. I hope not, because I generally enjoy your posts.

Regardless, be careful of quoting the company line when it comes to the blogs. The IE "illuminati" have been fearful and hateful toward the blogs since day 1. I wouldn't put a lot of stock in their opinions of anything new media. They don't get it.

The new guy seems to be doing wonders for them, but I can't imagine that the powers that be have really changed their minds too much about blogs. They've still not figured out how best to reach out to the blogs, but at least they've finally found someone who understands new media and they've at least given him some room to grow the brand online. He could use some pointers and some help, but he's doing better than I ever could simply by being able to get the others on board.

When a blog was tried in the past (and let me tell you it was like pulling teeth to get anyone there to see the need,) instead of putting top brass people on it, they shuffle it off to someone who lives in the nether regions of the state and who hasn't even been to IE meetings in 6 months. That poor soul was in over her head and quit right after the session. She had little support and was treated more like a pariah than a grassroots building tool.

I'm glad they got it figured out now, but they wouldn't have such a hostile relationship with so many local blogs if they hadn't had their heads up their asses for over two years. They still aren't doing what it takes to actually repair those relationships, but one guy alone as a volunteer can't do that for them anyway. It's a hard job he has and repairing years of screwups isn't really his job anyway. (But if history is an indicator, he'll get the blame for it.)

I would like to suggest that the confusion is not whether it is necessary for the senate to pass the resolution twice in one session. The problem is that Scott Pelath announced that he will not hold hearings on HJR08, so the only way to have time to try to bully him into changing his mind, is to have SJR7 come over from the senate again. If the senate really does not need to pass in again, perhaps that means that Pelath, or Bauer, should ignore it even when it does.

At the hearing, I especially enjoyed a lawyer, Chris Stovall, arguing that the meaning of words was self-evident and could admit no wrangling as to their import.

Also note that they are as worried, as we are hopeful, that Judge Hanson's wonderful ruling will stand up in the Iowa Supreme Court.

Good job, Don et al.

Don Sherfick Don Sherfick | January 28, 2008 11:38 AM

Golly, Jerame, your lengthy comment above made me go back and see what I had really said about the blogs, etc., that apparently opened the floodgates. While don't think so, perhaps what Judge Bork said about his own contribution to what became SJR-7 was "poorly drafted" is applicable to my post!

My intention was simply to note that there had been calls to boycott the hearing. I don't think those calls made a distinction between who came to observe, and who came to testify. I would agree that Gary's call to ignore the process, plus his comments on TPB, seemed to get closer to discouraging opponent testimony itself than did Bil's.

My reference to "the blogs" wasn't intended to link into that particular controversy. It was in a separate paragraph and was intended to reflect the thought that both Gary and Bil had asserted that the blogs in general had not received sufficient credit for their role in the fight against SJR-7. I simply meant to say that since I am BOTH a blogger for TBP AND have an affiliation with Indiana Equality that I sometimes found that steering between them despite what I know has been conflict is sometimes challanging.

It is hardly a secret that Indiana Equality has its critics. More than once I have been among them on certain methodolgy issues. I have not been in this game all that long despite the length of time I've spent on this planet, and so sometimes I'll admit I don't appreciate what some of the nuances of the tug-of-war between/among the concept of "grassroots" versus other approaches. Obviously, as in any group as diverse as the GLBT community in Indiana and elsewhere is....really no different from diversity within either major political party, etc....there are going to be arguments, some of them heated at times, over methods and means to achieve an agreed-to common goal. Some of it....I leave to the individual observer to judge.....may be more simply personality conflicts and one or more folks wanting to be in charge rather than any deep philosophical difference. That's probably so much a part of human nature that it will likely never be completely eliminated from the equation.

One thing I can say: at least, witness also other things like the dustup concerning HRC and the trans-inclusive ENDA flack that dominated this site and others for some time recently, our disagreements with each other are public. We don't, like our conservative foes who are pushing things like SJR7, try to conceal our disagreements about what it means and otherwise. Sometimes that is messy, but I think it is part of our strength, too.

Don Sherfick Don Sherfick | January 28, 2008 11:53 AM

Ed Fox: You may be right on your observation about the Senate "redundancy" in SJR7 votes. My impression, though, was that when Scott Pelath made his comments to the Indianapolis Star about not holding a hearing on the proposed amendment, he was referring BOTH to SJR7 if it came over, as well as HJR8, filed in the House earlier. Both, of course, are the exact same text.

Don, you're a very diplomatic and intelligent fellow. I couldn't agree with you more. Our strength definitely lies in our openness and willingness to air or disagreements publicly. There is no shame in having an honest debate on the issues. I don't think IE shares your value system here, but kudos for stating the positive that comes out of full disclosure and discussion.

I appreciate the fine line you feel you have to walk. It wasn't clear that you were addressing the line so much as lamenting its existence. I apologize if I misunderstood your intent there.

I just caution you not to lump "the blogs" in together, particularly not when that lump includes the likes of Gary. Not too many of us hold to his way of doing things, so we get a little testy when we think we're getting lumped in with him. That's especially true for those of us who've been on both sides of the IE bandwagon.

Thanks for clearing things up for me.