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.