This past Wednesday both proponents and oppontents of SJR7, the so'called "Marriage Amendment to the Indiana Constitution, presented their arguments to the Senate Judiciary Committee, dominated by Republicans. The outcome, as most had preducted, was 7-4 in favor of the amendment, strictly along party lines.
Senator Brant Hershman (R-Monticello), author and chief sponsor of the measure, led off with the testimony. He insisted that the amendment would keep only "unelected activist judges" from changing the definition of marriage or granting the marriage-like rights like civil unions. He assured the committee that the General Assembly would remain free to do so, and to correct any unintended results (such as doing away with domestic violence protection for unmarried couples....as is being litigated in Ohio) by legislation.
Was Senator Hershman being totally upfront with his fellow Senators? It would hardly seem so. The story of why takes a little time to tell, but if you'll follow down to the balance of this post I think you'll understand why his statements are at odds with some history, and the reasons for the Republican rush to pass on this piece of constitutional junk to the voters in November 2008.
To begin with, SJR7 is an Indiana adaptation of the proposed Federal Marriage Amendment (FMA), which Congress has thus far failed to adopt by significant margins. As originally written, the second section of the proposed FMA said:
"Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Compare that to the second paragraph of SJR7:
"This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups."
The two are pretty close, if not identical in all pertinent portions. Note especially the term "state...law" in the FMA, and the term "or any other Indiana law" in SJR7.
Now, and this is the crucial part: In mid 2004 the authors of the FMA decided to make a couple of changes in it before it was re-introduced (and again defeated) in the federal Senate. The changed FMA version read:
"Neither this Constitution, nor the constitution of any State, [deletion here] shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman".
Gone was the reference to "state [or federal] law". Also, the term "unmarried couples or groups" was removed and replaced. But despite this change in the FMA made by its conservative sponsors, Senator Hershman chose NOT to reflect these changes when he introduced SJR7 into the 2005 legislature. And it's this unchanged language that's now back before the General Assembly.
As I've alluded to in a recent post, retention of the term "or any other Indiana law" in SJR7 belies the argument Hershman and others make that the legislature would retain the power to enact civil union legislation and/or bestow similar benefits. But that is not just my opinion.
It turns out that when the FMA was changed, it produced a considerable bit of turmoil within the conservative community itself. Many members of the far religious right were very unhappy because state legislatures would now retain their full authority. Take a look at this one by The Concerned Women of America. Also take a look at these frantic ravings over the change on a fringe Religious Rght website. Nonetheless, more moderate voices prevailed, in part reflecting President Bush's comments that states (but not "activist judges") should remain free to do what they wanted concerning marriage rights, civil unions, etc.
My guess is that Senator Hirshmann was among those who were upset about the FMA change, and refused to reflect it in SJR7. Why? Maybe it was because he too didn't want to let the Indiana legislature retain that authority. He also apparently wanted to impact to "unmarried couples", not just to same sex relationships.
When Senator Hershman now essentially denies this, despite the interpretation taken by his colleagues in complaining about the FMA change, was his testimony before the Senate Judiciary Committee (and to the media and public watching) being truthful?
I have my own reservations........but I'll let you judge for yourselves. In any event, the question of whether or not SJR7 just applies to "activist judges" or also ties the hands of the Indiana Legislature is critical to the debate. Let's make sure our lawmakers fully understand that before taking themselves, and Hoosiers, over a legislative cliff.