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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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