Chris Douglas

The Big Lie V: "The Amendment Cannot be Changed"

Filed By Chris Douglas | March 23, 2007 4:50 PM | comments

Filed in: Marriage Equality, Politics
Tags: SJR-7

To the media and political observers: Can an amendment be changed the second time through the legislature and nevertheless progress onto the ballot in 2008?

The answer is yes. It has been done before.

One has only to research the legislative history of 1983 and 1984 to see an example. In those years, two amendments proceeded, one correcting archaic language and the other responding to a Supreme Court ruling mandating one-person one-vote, breaking county lines for the purposes of establishing voting districts. As it happens, the former amendment coincidentally contained language that conflicted with the latter, and therefore was no longer appropriate. The solution? The conflicting language was removed and both measures proceeded, changes notwithstanding.

For this to happen in Indiana, the House may remove language which has now been demonstrated to be conflicting and confusing, without affecting the main thrust of the amendment defining marriage between man and woman. The Senate has only to concur for the measure to proceed to the ballot.

Those who allege that Bauer must allow no change in order for the amendment to proceed are historically incorrect. It cannot be alleged accurately that a change to the amendment in the House delays the amendment. Those who take this position are disingenuous. Their main purpose in the second part is to preserve the ability to litigate against acts of the legislature or against any public entity or any corporation that derives contracts from public funding. It is that purpose which they are loathe to disclose and surrender.

Does the amendment threaten the ability of private corporations to offer domestic partnership benefits? If that corporation receives money from public contracts which depend upon Indiana law, and if that corporation's benefits can be construed as conferring any legal incident of marriage, the answer is yes.


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NIce try, Chris | March 23, 2007 5:29 PM

And I hope you're right, Chris. But multiple legal scholars, whose opinions I trust, disagree. Strongly.

Strangely, so does Eric Miller. He admitted as much as the hearing this week.

If the mission is to sew confusion and distract the proponents with any argument possible, have at it.

Otherwise, we'd best stick to the known.

Gary Welsh | March 23, 2007 5:30 PM

Rep. Pelath made reference to an LSA legal memorandum on that issue. The key was whether the two amendments were "substantially similar." I believe in that particular example, the change was more technical rather than purely substantive. A strong argument can be made that paragraph (b) is a separate and distinct substantive amendment to the constitution beyond paragraph (a). I suspect the issue would be litigated if an effort was made to place it on the ballot in 2008 without paragraph (b). It truly isn't a clear cut issue. You would think there would be something more definitive after all these years and as many times as the constitution has been amended, but it clearly is not. It's all the more reason to be extra cautious when making any changes to the document.

Chris Douglas | March 24, 2007 9:05 AM

You know, "Nice Try Chris", you have no professional reason I know of to hide behind your constantly concocted names. It's getting old, and leaves readers unable to measure your opinions against your track record and your opinions on other matters, both of which readers may find either respectable or contestable as they see fit. I think you are well intentioned, but your attempts at anonymity come at the expense of your credibility. I resist the temptation to establish your credibility for you, for better or worse, by revealing your name.

What's more, we're playing chess, not checkers, and each move must be made not so much with the opposition's immediate response in mind, or as the board appears to exist, for those are obvious. We must make our moves thinking through where we want and need to be in the future and what will maneuver the perpetrators of this Constitutional assault into unavoidably uncomfortable positions.

You seem to be under the impression that a politician's votes always reflect the way that politician thinks, and that politicians are so pure either in courage or in prejudice that they are immune to the environmental influences that play upon their political self-interests. Such purity is rare in the Indiana legislature. In the past, that lack of purity worked against us; now, as the environmental conditions change, it will work for us.