Don Sherfick

SJR-7: The silence is deafening

Filed By Don Sherfick | March 26, 2007 8:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: House Rules and Legislative Policy Committee, Indiana General Assembly, marriage amendment, SJR-7, SJR7, testimony

Saturday Gary Welsh on Advance Indiana carried an item commenting upon a front page article in the Indianapolis Star by Bill Ruthart. The Star piece went into some depth concerning the debate over interpretation/unintended consequences of SJR-7, focusing on Domestic Violence Protection legislation. Gary went on to refer to my opening testimony before the House Rules and Legislative Policy Committee last Wednesday concerning a closely related issue which I have considered central to the debate: Are SJR-7's proponents correct when they say it limits only "activist judges" in finding civil unions and similar rights and benefits, or does it ALSO tie the General Assembly's hands as to writing laws in this area?

My statement called attention to the fact that SJR-7 was cut and pasted from the proposed Federal Marriage Amendment (FMA). It then called attention to the fact that the conservative sponsors of the measure changed it in 2004 to clean up ambiguous language. That language dealt with the very same central issue of "just judges or also the state legislature" that I had described. Chief Congressional sponsors issued statements confirming that the changes were made for that reason. Yet when SJR-7 was written, the changes were rejected by its Indiana authors. (See this for a comparison of the texts). However, those authors continue to claim that the current language is clear and unambiguous concerning the matter.

Several weeks ago after the Indiana Senate against passed SJR-7 in its current version, I sent a letter to all 100 Indiana Representatives, outlining the SJR-7/FMA link/change and asking aloud why Senator Brandt Hershman wasn't talking about this important matter. Gary's item refers to this, and goes on the describe a rumor he received from a reader concerning one possible explanation: That the authors had mistakenly used the UNCHANGED AND AMBIGOUS version of the FMA to write SJR-7, but had not called any attention to it.

I have no information other than what Gary has reported concerning the "mistake" explanation. Frankly the thought had crossed my mind as possible, but tended to believe that the rejection of remedial language was purposefully. I still favor my first inclination. Either way, something isn't right, here. Too much is at stake to gloss over this matter.

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Frankly, because of my letter to 100 legislators, I fully expected that the proponents would be "loaded for bear" in dismissing the FMA change matter, calling upon legal scholars they have previously referred to in dispelling the arguments that I raised, both at the hearing and previously on this site. But attorney James Bopp was not present, as he had been at the Senate committee hearing, and Arizona attorney Chris Stovall, who otherwise has never hesitated to address the terms of SJR-7 in great detail. Two Indiana attorneys followed, but it was obvious that nobody was going to touch this electric third rail.

It may well be that the proponents of SJR-7 may still come forth, at the 11th hour, with an explanation. They may still detail if they were aware of the FMA changes and when they became aware of them. If they knew prior to introducing SJR-7 in early 2005, what was their rationale in not incorporating the changes? If they discovered the changes sometime later during the 2005 session, why didn't they disclose the changes and remedy the situation when there was time to remedy it before the last session ended? And finally, if they do come forward now, why not a peep during last Wednesday's hearing?

Whether mistake or knowing action, we're talking about a change to the Bill of Rights section of the Indiana Constitution. Its meaning and the events surrounding its origin need to be clearly understood.

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