ILNews

Round 2 for hunting and marriage amendments

Back to TopCommentsE-mailPrintBookmark and Share

Although changing the Indiana Constitution is not easy, attempts to amend are common and the 2013 session of the Indiana General Assembly could see two proposed amendments come to the floor for a second vote. One amendment would protect Hoosiers’ right to hunt while the other would restrict their right to marry.

Constitutional attorneys are paying attention to the amendment to ban same-sex marriage, pointing out that limiting an individual’s rights, complicated by shifting attitudes and ambiguous language, make this provision fundamentally different from other amendments that have been made over the years to the Constitution of Indiana.

Both the “right to hunt” amendment, sponsored by Sen. Brent Steele, R-Bedford, and the same-sex marriage amendment, authored by Rep. Eric Turner, R-Cicero, passed the Legislature in the 2011 session. If either again passes the 2013 or 2014 session, it could go to the voters in November 2014.

The “right to hunt” amendment has been popping up in state legislatures across the country. Kentucky, Minnesota, North Dakota and Wisconsin are among the states that have added the provision to their constitutions. It is similar in spirit to most amendments in that it protects the right of an individual, here the right to hunt and fish.

On the other hand, the amendment banning same-sex marriage takes the unusual step of not only limiting the government’s powers but also restricting a person’s rights. Choosing whom to marry and form a family with is one of the most fundamental rights, said Deborah Widiss, associate professor at Indiana University Maurer School of Law.

“It’s pretty historic because generally speaking federal and state constitutions have been concerned with protecting individual rights from undue control,” she said.

Accompanying the ban on same-sex marriage are rapidly changing public attitudes. Three decades ago, society was not even contemplating marriage between two individuals of the same gender, but now states are voting for laws that allow same-sex partners to marry or form civil unions.

A societal shift like this has not been seen since the Civil War, said Paul Jefferson, partner at Barnes & Thornburg LLP.

“My point is simply, if we’re going to put into the constitution restrictions on rights … we just need to be really careful and deliberate about how this proceeds,” Jefferson said.

Changing the judiciary

Amending the constitution in Indiana is more difficult than in other states. Hoosiers must go through a three-step process of having the amendment pass two consecutive General Assemblies then go to the voters for either approval or rejection.

“Most Hoosiers likely are proud of how infrequently we amend our constitution because it shows the institutions we have in place are doing a reasonably good job,” said Jon Laramore, partner at Faegre Baker Daniels LLP and former legal counsel to Govs. Frank O’Bannon and Joe Kernan.

A series of amendments adopted in 1970 made sweeping changes to the state’s judicial system. Most notably, the system of electing judges was switched to the current method of merit selection through a judicial nominating commission for the Indiana Supreme Court and the Indiana Court of Appeals.

The changes also expanded the Supreme Court to having no less than four and no more than eight associate justices in addition to the chief justice. The original language limited the bench to no more than five judges.

Also, the 1970 amendments brought the Court of Appeals into the constitution. Not included in the 1851 Indiana Constitution, the court was established by statute. The amendment mandated the General Assembly determine the geographic districts and locations for the court.

In 1996, victims of crime were afforded rights under the constitution. Language was included in Article 1 that gave victims the right to be treated with respect as well as to be informed and participate in the criminal justice process. This amendment was added as a reaction to the constitution outlining the rights of the accused but not mentioning the victims.

Subsequently, after the victims-rights amendment was ratified, the Legislature passed a series of statutes to define the ambiguous language of the amendment. The statutes included giving the victim the rights to make a statement for use in the presentence report, to be heard at any proceeding involving sentencing, and to information about the disposition of the criminal case.

Language in the amendment had to be loose, Laramore explained, because of differences between judiciaries. Counties have different court procedures which change over time. If the constitution was too specific, the amendment would quickly become outmoded.

Language concerns

Questions are already arising over the language in the proposed same-sex marriage amendment. As written, the proposal defines marriage as between one man and one woman. It then includes a second sentence which states that legal status “substantially similar” to marriage will not be valid or recognized.

More than 40 states have same-sex marriage amendments in their constitutions, but not all include that second sentence that goes beyond. Indiana’s is especially broad and could lead to litigation.

Laramore said the confusion comes in determining how many attributes of marriage would have to be present to conflict with the amendment. For example, if the state extended medical benefits to unmarried partners would that violate the constitution, or if the Legislature passed a statute giving unmarried cohabitants hospital visitation privileges would those violate the constitution?

Should the amendment become part of the constitution, Widiss said it could open the door for limiting other rights. Advocates of particular issues could point to the same-sex marriage language and remind the Legislature individual rights have already been constrained once.

Indiana already has passed a law banning same-sex marriage. However, in general, enshrining something in the constitution ensures that a future Legislature does not overturn or change the law, said Geoffrey Slaughter, partner at Taft Stettinius & Hollister LLP. The residents may trust their current legislators but they may not trust the officials elected in years to come to adhere to their wishes.

Unique document

Indiana first penned a constitution in 1816 which coincided with the territory becoming a state and joining the union. After the state ran into financial troubles linked to investments in building canals and eventually went bankrupt, another constitutional convention was convened and the 1851 constitution was drafted. That is the constitution which stands today.

The Indiana Constitution is different from other state constitutions in that the Bill of Rights comes first. Even the opening words invoke Thomas Jefferson’s Declaration of Independence and underscore that individual rights spring from nature, not government.

Then the following articles establish elections along with the legislative, executive and judicial branches. Notably, the constitution begins and ends by giving the people the right to alter their government and amend their constitution.

“Framers of the Indiana Constitution had a very different understanding of what is important, what needed to come first,” Slaughter said.

Altering the constitution requires passing an amendment which, at its fastest, could take three to four years. Slaughter’s perspective is the constitution is not a fixed document and the bigger concern should be keeping citizens engaged.

“At the end of the day, all the silly ideas in the world aren’t going to undermine our system,” he said, “because our system really is only as good as the people who occupy the system.”•

ADVERTISEMENT

  • voting
    The people of Indiana have no business voting on whether or not 2 people of the same sex have the right to marry. All people are created equal and guaranteed certain unalinable rights, life, liberty and the pursuit of happiness and if a man wants to marry a man or a woman wants to marry a woman to be happy, that is their business, not anyone elses!

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Compromising precious constitutional rights in order to protect them? Rather like the military intelligence slogan that the town had to be destroyed in order to save it. Looks like Joseph, Mary and Baby Jesus will have quite the eventful Boxing Day this year. Wise men will arrive to find no one to accept their gifts? Oh well, wisdom not all that desired this xmas anyway. Maybe the ACLU and Christian attorneys can work out a "three days every third year" visitation compromise and all of this messy litigation stuff can just be boxed up as well? It is an art form, now isn't it? Thomas More, a man of manifold compromises is undoubtedly cheering on wildly.

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

ADVERTISEMENT