Don Sherfick


Filed By Don Sherfick | March 29, 2007 7:44 AM | comments

Filed in: Fundie Watch, Marriage Equality, Politics
Tags: Brandt Hershman, Eric Miller, federal marriage amendment, FMA, Indiana legislature, Indiana Marriage Amendment, Robert Bork, second sentence, SJR-7, SJR7

Ed Fox, a former fellow contributor to this site, has made a real find, as reported yesterday by Gary Welsh on Advance Indiana: None other than arch-conservative, strict-constructionist Robert Bork, unsuccessful Reagan nominee to the U.S. Supreme Court, said, in effect, that the second sentence of SJR-7 is "poorly drafted", and doesn't do what Senator Hershman claims for it. More on that below but let me set the stage for you:

About this time last year I was casually looking at the second sentence of SJR-7 and wondering how it compared to the Federal Marriage Amendment?", which I had followed since about 2003 but needed a refresher on the exact text. So I looked it up and saw something that looked similar, but with some words deleted and a substitution made. Funny, I mused; I could have sworn I saw something much closer to SJR-7. So I searched further, and then it hit me: Senator Hershman and his colleagues had lifted SJR-7 from the ORIGINAL Federal Marriage Amendment, and not the change. I asked myself, "Why"?

When I looked even further, I found that Representative Marilyn Musgrave, joined by Senator Wayne Allard, had made the changes out of concern that the prior language could be readily misunderstood as prohibiting state legislatures from enacting civil unions and similar benefits. Since the purported intent had been to restrict only judicial decisions in this area, these changes were introduced. I began blogging on the subject, and recently opened the opponent's testimony before the House Rules Committee by highlighting it. It was, and remains obvious to me that the opposition (including three attorneys in addition to Eric Miller himself) didn't want to get anywhere near the subject, because in not picking up the change, it meant that just the opposite of what they were saying about legislative power didn't wash. You can compare the changed and unchanged texts of the FMA laid against SJR-7 here.

A few days ago Senator Hershman put out to the media and elsewhere a couple of "research papers" from out-of-state "marriage preservation think tanks". They meekly acknowledged that SJR-7 had its "seeds" in the FMA. But instead of being forthright and admitting it had come from the ORIGINAL version, one of them compared SJR-7's text to the CHANGED one, and then proceeded to say the differences were of no consequence. Not a peep about any changes, or more importantly, the clarifying reasons for them or why the Hershman decision not to incorporate them into SJR-7. The silence continued on those all-important questions. And it still has.

Then last night I opened Advance Indiana to see that Ed Fox has uncovered Robert Bork's testimony before the national House Judiciary Committee. I had previously known that Bork was a member of the committee (I believe the name was the "Arlington Group") that conceived the Federal Marriage Amendment. The Washington Post mentioned at the time that there was dissent in the group as to how far the FMA ought to go and how it should be worded. Notre Dame Law Professor Gerald V. Bradley, who Senator Hershman touted as having helped him write SJR-7, was also part of the FMA team. Now I think I know why he's not been around the Statehouse.

I refer you to Advance Indiana for a more complete Bork text and commentary, but among other things, Bork called the second sentence "poorly drafted", and also said that use of the word "construed", which SJR-7 proponents claim clearly is restricted to judges, had failed in its task.

So, as Gary points out,

....the gig is up. Either Senator Brant Hershman (R-Wheatfield) and the proponents of SJR-7 inadvertently copied the wrong version of the FMA making it applicable to "any state law", as well as the constitution, or they deliberately chose this version knowing full well it indeed does more than what they are telling Indiana lawmakers and the public.

I second that heartily. However it came about, SJR-7 was flawed from the beginning, and now we know that THE Chief Patron Judicial Saint of the Conservative Right, Robert Bork, has effectively pronounced it so. Will the silence be broken, or will Senator Hershman and his colleagues continue to try and ram through this measure for political advantage in the November 2008 elections, without regard for what a defective (and now disowned) bit of language will do to the people of Indiana?

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Ellen Andersen | March 29, 2007 3:51 PM

I pick door #2: In my opinion, Senator Hershman and his advisors are well aware of the potential mischief that the words "or any other Indiana law" and have chosen to use that term deliberately.

I base my conclusion on two conversations I had with Senator Hershman in early 2005 about the words "or any other Indiana law."

The first conversation took place in his Senatorial cubicle. I explained to him that I was quite worried that "or any other Indiana law" would have the effect of binding the hands of the legislature as well as the courts. At a minimum, I said, the language would require the judiciary itself to decide whether or nor SJR 7 affected the ability of the legislature to pass couple- protection legislation -- which was exactly the kind of judicial involvement Sen. Hershman had said he wanted to avoid.

I asked him to amend SJR 7 to remove those five words. (This was before SJR 7 passed the Senate the first time; Sen. Hershman could have altered the text without delaying the passage of SJR 7 at all.) He told me that he was open to the change but that he wanted to consult with some of his legal advisors first.

A few days later I followed up with him in the hallway. His response was that he had talked with his legal advisors and they'd assured him that the original text was fine. I pointed out to him that changing the amendment's wording wouldn't delay its progress at all and that the change would *insure* that the amendment only affected the judiciary. He was not moved.

In short, Sen. Hershman knew about the potential legislative limitions posed by SJR 7 from the outset and deliberately chose to keep the language in the amendment.