Here's the text of my testimony which served as an opening statement for the opposition to SJR-7 in yesterday's hearing:
"Mr. Chairman and Members of the House Rules and Legislative Procedures Committee:
My name is Don Sherfick. I'm an attorney, retired from active practice with the Navy's Office of General Counsel as chief legal officer of the former Naval Air Warfare Center in this city. I am a 1973 summa cum laude graduate of the IU Law School in Indianapolis. I have undertaken a careful study of the history of SJR-7 in light of its source material. Like all attorneys, my stock in trade is words, what they mean, they are used, and what effects they will have.
This morning you have heard and are going to hear a lot about words, especially the 29 words of SJR-7's Section (b). They're intended to go into the very Bill of Rights of our Indiana Constitution, so they deserve the most careful scrutiny. Are they clear? Can reasonable people disagree on what they say? Can they be interpreted to do unintended things with bad consequences?
The big gap between what SJR-7's proponents say and what its opponents say concerns one central issue: Would SJR-7 bar ONLY so-called "activist judges" from interpreting laws? Or would it ALSO affect current laws and bar the Indiana Legislature itself from passing or correcting pertinent laws in the future?
The implications of this issue are far-reaching because of the large list of things people like Congresswoman Linda Musgrave, sponsor of the parallel Federal Marriage Amendment say the term "legal incidents of marriage" includes. Regardless of how arguments over how close SJR-7 tracks amendments in Ohio, Michigan, or other states, and whether or not bad effects elsewhere might happen in Indiana, the key matter is WHAT SJR-7 itself has to say about our legislature's authority.
Lay the text of SJR-7 aside that of the original Federal Marriage Amendment as proposed and you'll quickly see that the first was copied almost verbatim from the second. And then know this: in 2004 even conservative Republican sponsors of the Federal Marriage Amendment were unsure and disagreed over the same central question I just mentioned. To make the matter crystal clear, they amended it by taking out the term "state law". Representative Musgrave and Senator Allard were quoted nationally as saying [quote]"We want to make it clear, without any ambiguity, that states do have a role in dealing with civil unions and benefits related to marriage."
All of the fuss over the crucial question of legislative authority COULD have been clarified by a similar deletion in SJR-7, in this case taking out "or other Indiana law when it was introduced in early 2005. But it wasn't, and why it wasn't is something you need to give serious thought to. Proponents may dismiss the changes as merely "technical". But how can something as basic as striking the reference to state laws be trivial and without meaning?
I would also note that after SJR-7 was introduced, there were several amendments offered before final passage which would have clarified the retention of the legislature's authority. But the proponents opposed them, and they were rejected. Again there was a chance to do away with ambiguity but it was cast aside.
Please listen to the WORDS of those who are concerned over the consequences of our legislature's hands being tied.....and then read, and read again, the 29 WORDS of the second sentence in light of how they've come from the Federal Marriage Amendment but how they do NOT reflect a critical change.
If you do, I believe that you will see that SJR-7 is flawed in a fundamental way. Your very lawmaking authority under our Constitution is at stake here. You ought not to let THESE WORDS go any further. This is in the end not about rhetoric or personalities, legislative or otherwise. It is rather about words that underpin important policy, in this instance bad policy that can effect all good Hoosier folks, including some we may not always appreciate are in our midst, adding to be betterment of our daily lives.
Thank you for your attention."