[ED NOTE: This story has been updated at the end of the post]
I'm a little late on this story, but I wanted to try and check out the facts and get some other opinions. Facts, however, seem to be in short supply in this case.
When I was writing my post about the article quoting Pat Bauer about SJR-7, a few words in one of the early paragraphs caught my attention. Surely it didn't say what I thought it said... I skipped pointing it out until I could investigate further...
Proponents of the amendment have said that if any of the language changes, it would restart the lengthy process of amending the constitution. But House Speaker Patrick Bauer, who has consulted attorneys on the matter, said the section that specifically bans same-sex marriage could still advance even if another provision is removed.
"I think that might be the case, but we'll see," said Bauer, D-South Bend.
Sadly, it's looking as if that might just mean what it says. If Part B of SJR-7 were to be removed, Part A could still end up on the ballot in 2008! (It will have passed two consecutively elected General Assemblies.)
Advance Indiana quickly picked up the story and he quotes the Indiana Legislative Insight:
But if that sentence is removed, does that mean that the Constitutional amendment referendum is derailed?
Since the language of the amendment itself would be unaffected, you can expect some to argue that it should still be allowed on the 2008 ballot (and we've heard that there are already some legal memos floating around supporting that perspective). But there are also some who suggest that any alteration in the language of the Joint Resolution itself would serve to prevent the measure from being placed before Hoosiers for ratification . . . and you can expect a legal firestorm over how all this will shake out procedurally.
I agree with Gary that this tactic would definitely cause "a legal firestorm." (I'm reminded of a title that a friend of mine gave to SJR-7 - "The Lawyer Employment Act of 2007")
Gary doesn't seem to put much stock in this tactic, but Marcia Oddi at the Indiana Law Blog
has a different take when she refers to the ILI quote:
I don't think so. Why would proponents challenge putting the proposed constitituional [sic] prohibition against same-sex marriage before the voters, even without the second sentence, if that is what ended up being passed? The prohibition in the first sentence gets the job done.
So what do we really know? Nothing. There's no precedent for an action of this type - it's never happened before. All other constitutional amendments have been substantially changed - not just had a second section deleted. While Marcia doesn't think those in favor of SJR-7 would file in court, surely to God someone from our side would! (I'd imagine Lambda Legal since no Hoosier organization has enough money for a court challenge.)
What are the chances of this happening? Who can say? We know the right wing is desperate to have this on the ballot in 2008. With so many people disenfranchised with the religious right government we currently have, they're in a tizzy to find a way to bring out conservatives during the gubernatorial and presidential elections. Will they go this far to try and win an election?
And most importantly, what does this mean for our community? Will we be facing a referendum in 2008? Can we win the referendum? Have we been out-manuevered again in the Statehouse?
I have tons of questions. Anyone have any answers?
[UPDATE] The Indy Star has an article online now from Louisville Courier-Journal columnist Lesley Stedman Weidenbener that concludes with:
Proponents of the measure say any change means it can't go on the ballot in 2008. Two consecutively elected legislatures must approve the same amendment, they say.
But Bauer says he has talked with attorneys who have a different interpretation. They say that if the first part of the amendment stays the same -- the section banning same-sex marriages -- that part could go on the ballot.
That's an issue that would almost certainly end up in court. But it would all be moot if the House decides to stick with the original language. We could find out on Wednesday.