Don Sherfick

The "New" Indiana "Marriage Amendment": The Hypocrisy of "Substantially Similar"

Filed By Don Sherfick | January 15, 2009 1:00 PM | comments

Filed in: Living, Marriage Equality, Politics

Last Monday afternoon the Indiana Family Institute, flanked by its usual ideological colleagues including Tony Perkins, national president of the Family Research Council, ended the suspense over their perennial offering, the so-called "Marriage Protection Amendment" to the Indiana Constitution. The question wasn't whether or not the previously defeated measure would be back, but rather what it would look like this time around.

At first blush, some differences stand out. They no longer use the term "union" to define the term "marriage" I don't quite know if that's significant or not. It's probably just a throwaway attempt to win over some pro-business folks who don't care much for unions anyway. But then I look beyond that and see they've done a remodeling job on the second sentence that makes the phrase "lipstick on a pig" seem wildly complimentary.

Now I'll admit I had come to have a bit of nostalgic affection for the old second section. It said:

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.

I had no clue as to what "legal incidents of marriage" really meant because the sponsors had a different answer for every day of the week. Well, okay, maybe on Sunday they did gave it a rest. But they treated it with so much reverence as not needing even one comma of change that strains of "The Battle Hymn of the Republic" started playing in my head every time I read it. But along with their elimination of "union", they've now deprived me of that almost spiritual experience.

They've now replaced it with this:

A legal status identical or substantially similar to that of marriage for any unmarried individuals shall not be valid or recognized.

"Substantially similar". Hmmmmm. I wonder what would happen if I called my real estate broker and told him that if he could find me a house that was "substantially similar" to the one I live in, I'd pay him twice the normal commission but if it wasn't, he'd owe me five times as much as a penalty. His dilemma (and perhaps mine): Would a second full bath upstairs compensate for two toilets in the basement? How does a three car garage stack up as a tradeoff for a fireplace in the master bedroom?

That phrase "...shall not be valid or recognized" is some pretty heavy stuff. Seems as if it could create a lot mischief concerning many common relationships. For example, what if I and somebody else (another "individual") have a comprehensive set of legal agreements, reciprocal wills, powers of attorney, own our residence jointly, and a few other things thrown in. If something should go amiss and one of us has to go into court, is our legal relationship "substantially similar" to a marriage? , If the answer is "Yes" than wouldn't the court have to refuse to enforce our mutual obligations? What would happen if we backed off a bit and dropped the power of attorney? Or maybe delete any reference to "my domestic partner"? Would that take it far enough away from being "substantially similar" that I could sleep okay at night because my legal agreements would still be upheld?

When asked about what kinds of things would make something "substantially similar" as to domestic partnership benefits, one spokesperson for the proponents of the new measure shrugged and said it would have to be judged on a case-by-case basis.

"Judged"? Good heavens......aren't these the very same folks who (until now at least) have insisted that we need a constitutional amendment because those subversive "unelected activists judges" on the Indiana Supreme Court were poised to force us to live beside a nontraditional couple whose relationship threatens our own second (or is it third) marriage? Somebody, please explain to me why we can't trust those judges to follow solid Indiana precedent that bars same-sex marriage but we can to figure out the nuances of "substantially similar"?

The attempt to employ more fuzzy terminology to help write discrimination into the Bill of Rights of the Indiana Constitution reveals a continuing and fundamental hypocrisy on the part of the sponsors.

They're using the same old playbook stage directions: Keep dragging this stuff out and tagging it about "same-sex marriage". Keep saying it's aimed at curbing "unelected activist judges". Divert attention away from the fact that it also ties the hands of the legislature. If you have to, begrudgingly mutter under your breath that unlike the last version, the new measure would keep democratically elected lawmakers from even thinking about civil unions. Deny, despite a clear history to the contrary in Kentucky and other states, that domestic partnership benefits would be threatened.

And when asked about the "substantially similar" concept, kick the can down the road to the same courts that you don't otherwise trust to tie your shoestrings to figure it all out. And finally, if the judges dare interpret the term to give nontraditional couples a break, say you did your very best to protect marriage but they went against "the will of the people". It's the old trick of passing an legislative monstrosity to stir up your base and then pass the buck to the courts to unravel the mess you've made and blame them for it if they don't agree with you.

I'd say more about this but I have to sign off. My real estate broker wants to know if another walk-in closet compensates for a half-bath just inside the side door.

Make that a "substantially similar" half bath, maybe light green with a "substantial" touch of yellow. Or at least something similar to yellow.

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It's because they don't give a shit, Don. They don't want us to have any rights whatsoever. "Unintended" consequences and whatnot...

Douglas Meagher | January 18, 2009 11:51 AM

If the consequences were not so serious, this parsing of words would be funny. It reminds me of when our legislature once attempted to set the mathematical value of pi.