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Round 2 for hunting and marriage amendments

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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.”•

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  • 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!

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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