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Does marriage amendment need to be amended?

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marriage_facts.jpgQuestions over how to fix the troublesome second sentence of Indiana’s increasingly controversial marriage amendment have sparked much speculation and led to one unexpected – and untested – solution.

Less than a week after the Indiana General Assembly began the 2014 session, the constitutional provision banning same-sex marriage was headed to the House of Representatives Judiciary Committee. As federal judges scrutinize similar bans in Utah and Ohio, the Indiana amendment appeared set to gain approval from both chambers before the end of January.

However, when legislators vote on the amendment, they could also be casting votes on an accompanying bill meant to explain the intent of the General Assembly. House Bill 1153, introduced by Rep. Eric Turner, R-Cicero, attempts to skirt concerns with the amendment by listing what the constitutional

ban would not restrict.

The measure drew immediate and strong reaction from the opposite side of the aisle.

Rep. Matt Pierce, D-Bloomington, described HB 1153 as a “catalogue of flaws in the amendment,” and questioned if the bill, should it become law, would have the effect the Republicans believe it will.

“They know the second sentence is fraught with all kinds of unintended consequences and they’re trying to explain them away without amending the proposed amendment,” Pierce said.

House of Representatives Speaker Brian Bosma, R-Indianapolis, maintained the bill answers the “valid questions” that have arisen from the proposed marriage amendment. Turner’s legislation, he said, addresses concerns over the potential impact on human rights ordinances while spelling out that domestic partner benefits, powers of attorney and other agreements people enter into will still be valid.

“I think it’s clear that regardless of what the Legislature does, even if it does nothing, there’s going to be a lawsuit filed here as there has been in 30-plus other states on these issues,” Bosma said. “So we felt it was quite appropriate to give the courts and voters, if it passes, and legislators some clarity on precisely what the language does and does not do.”

Making a tweak

The process for amending the Indiana Constitution requires that a proposal be approved by two consecutive General Assemblies, then ratified by the electorate.

Over the past 10 years, amendments defining marriage as between one man and one woman have been filed in the Statehouse but were stalled in the Democrat-controlled House. The current proposed provision was first approved during the 2011 legislative session and must be green-lighted this session or the process to constitutionally ban same-sex marriage will have to start over.

Much of the focus on the amendment has been with the second sentence, which could be interpreted as banning heterosexual relationships. To fix this problem, the possibility has been raised of rewriting or dropping the sentence and still continuing with the ratification process.

Geoffrey Slaughter, partner at Taft Stettinius & Hollister LLP, is among those who believe an alteration would require a new beginning.
 

geoff slaughter Slaughter

He pointed to the legislative process where a bill that undergoes even a minor change has to be reapproved by both the House and Senate. That procedure seems to set a precedent for starting over whenever a proposed amendment to the state constitution is altered, he said.

Neither Indiana caselaw nor legislative history provide a clear answer. In 1965, lawmakers did not start the amendment process over when, during the second presentation, it dropped language in a proposed change to Article 10 of the Indiana Constitution. Five years later, the General Assembly corrected scrivener errors in an overhaul of Article 7 that substantially changed the state’s judiciary. The amendment was subsequently challenged on several grounds in the Indiana Court of Appeals and Supreme Court, but the judges demurred on ruling whether the revisions were substantial enough to cause a restart.

In 1994, when the Legislature set about amending Article 16 which, ironically, details the steps for amending the state constitution, the process started over because a phrase was removed from the end of a sentence.

Former Senate President Pro Tem Robert Garton, R-Columbus, is considered the driving force behind getting that General Assembly to go back to the beginning. His insistence on following the rules was reinforced when, as a young state senator, he watched two Senate presidents get hauled away to jail.

Looking at the wording in the constitution, Garton asserted any change made to the same-sex marriage amendment would require the process start over. Specifically, the language of Article 16 says “the amendment” rather than “the revised amendment” or “the changed amendment,” which to Garton means no changes are allowed on second presentation.

“The constitution is not that difficult to read,” he said. “It’s rather plain language, ‘the amendment’ is ‘the amendment.’”

Moving forward

Although HB 1153 is viewed as alleviating the need to rework the amendment, it may not insulate the proposed provision in the courtroom.

Pierce raised the question of whether the courts would even consider the interpretation provided by the bill when faced with a challenge to the same-sex ban. The Indiana Constitution is not subservient to the state statutes, he said, which makes it likely that the judiciary will look at the language of the amendment and make its own interpretation of the second sentence.

However, Bosma said HB 1153 keeps the process moving forward and enables the General Assembly, and possibly the public, to make the decision about what constitutes marriage.

“I think it’s right for the Legislature to make this decision and not a judge and that’s why I, personally, support the amendment,” he said. “If I thought it was disastrous for Indiana, we wouldn’t be doing it.”

Jane Henegar, executive director of the American Civil Liberties Union of Indiana, disagreed, saying the amendment should not be put to popular vote. It limits individual rights that the Founding Fathers enshrined in the Bill of Rights to protect personal freedoms from harm.


henegar-jane-mug Henegar

Henegar said the Legislature should not try to be clever in fixing the amendment and instead should defeat it. The ACLU of Indiana is preparing if the constitutional provision does pass through the Statehouse.

“We’ll look at every option and try to refute (the amendment) in whatever form it may survive the Legislature,” Henegar said.

Shifting ground

Since the General Assembly approved this most recent version of the marriage amendment three years ago, public attitude toward the subject has shifted dramatically. Perceptions of same-sex couples have changed not only in the public square but also in the federal courts.

“What are we really doing this for,” asked Jon Laramore, partner at Faegre Baker Daniels LLP, “because the federal courts may trump the effort, at least in some respects.”


Jon Laramore Laramore

Unanswered is the question of whether states that ban same-sex marriage will have to recognize those marriages performed in states that do not prohibit that type of union. Indiana’s law against gay marriage and its potential constitutional ban would only be binding to state courts. The federal courts could apply federal law to rule that same-sex marriages performed in Iowa or Illinois are also valid in Indiana.

Even before Indiana’s amendment reaches the court, it may become a moot point. Voters will have final say on the provision if it appears on the 2014 ballot.

Garton’s experience with the same-sex marriage ban is telling. He voted for an amendment prohibiting marriage between individuals of the same gender but he was not upset when the measure failed to get through the House. The opinions from the opposition resonated with him, especially the arguments that characterized the ban as a civil rights issue.

He does not have a definite answer as to whether a ban should be enacted but his uncertainty reflects how opinions have turned around.

“I can’t say I’m comfortable with it,” Garton said of same-sex marriage. “The issue has changed, public attitude has changed. It’s a question if it should be in the Constitution.”•

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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