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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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