The Amendment To Save Marriage As We Know It: It's Back

Will We See A Real Debate This Time, Or Just More Grand-Standing From The Religious Right?
Just as sure as the sun rises each day in the east the Christian soldiers of the legislature are back with their answer to all that ills the sacred institution of marriage--a constitutional amendment to ban gay marriages or anything else they see as an affront to marriage as defined by their personal religious convictions. SJR-7, approved by the last General Assembly and now before the current General Assembly adds these two simple, but far reaching paragraphs to the Indiana Constitution:

Marriage in Indiana consists only of the union of one man and one woman.

This Constitution or any other Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.

Overwhelmingly approved by both chambers two year ago, SJR-7 begins the session with more than one-fifth of the Senate signed on as sponsors. In addition to the principal author, Sen. Brandt Hershman (R), ten other Republican senators, including Vic Heinold, Richard Bray, Robert Jackman, Dennis Kruse, Gary Dillon, Mike Young, Mike Delph, Tom Weatherwax, Marvin Riegsecker and Jeff Drozda have all signed on as sponsors. If it repeats its success this year, SJR-7 will go before voters in the 2008 general election.

Because I know a number of legislators regularly read this blog, I would like to endulge the legislators to spend more time reflecting on what exactly they seek to accomplish by the enactment of this constitutional amendment that it hasn't already accomplished statutorily. Is SJR-7 the appropriate remedy to cure what some religious zealots view as a threat to the institution of marriage? A constitutional amendment is more permanent than a legislative enactment which can be easily repealed in a single session of the legislature. If it makes a mistake with a constitutional amendment, it takes at least another four years to right the wrong. For this reason alone, legislators should take extra care with its power to amend our constitution.

The father of our own U.S. Constitution, James Madison, thought the document important enough that it should be difficult to amend: proposal by two thirds of both Houses or two thirds of the state legislatures, followed by ratification of three-fourths of the states. Madison believed there should be a strong presumption against any constitutional amendment. When they are adopted, they should remedy serious structural defects in the document or attempt to include groups previously excluded from the political process. While other founding fathers, such as Thomas Jefferson, thought the Constitution should be rewritten frequently, Madison's thinking has become the norm under which we've operated for more than 200 years. Only 27 amendments have been added in the history of the Constitution, with just one mistake. The 18th Amendment, which imposed the prohibition on alcoholic beverages, was repealed by the 21st Amendment just 14 years after its original adoption.

The first ten amendments, what we know as the Bill of Rights, secured to the people those rights the founders viewed as so fundamental that the ratification of the Constitution by the states rested upon their inclusion. With the exception of the prohibition amendment, the amendments all stuck to Madison's principles. They either corrected a structural defect, such as 25th Amendment concerning presidential succession, or they included groups previously excluded, such as the amendments extending full citizenship rights to African-Americans and voting rights for women and younger voters.

The process for amending the Indiana Constitution is not near as cumbersome as the federal constitution, but just enough to curtail the number of times it's been amended. As the Centennial History of the General Assembly described one earlier era:

Although the General Asssembly wrestled with the archaic provisions of the 1851 Constitution at every session, the years from 1890 to 1930 marked an era of constitutional impasse for the state of Indiana. The legislature considered essential amendments each biennium, usually for naught because of the cumbersome process of amendment spelled out in the document. Amendments had to pass two consecutive sessions and then be approved by the people. Frequently, what one session passed the next disallowed or changed. On those occasions where consecutive general assemblies concurred in amendments, it was then up to the people to accept or reject the changes by majority vote. In almost every instance, more voters approved than rejected the proposed amendments. But the state Supreme Court held, in a series of rulings, that amendments were not adopted unless the ayes constituted a majority of all votes cast in a particular election. Proposed amendments almost always received substantially fewer affirmative votes than candidates running for elective statewide office. According to the court, this meant the amendments were neither approved nor rejected, but still pending.

In the last century, the state Supreme Court reinterpreted the amendatory process to provide for adoption of amendments by a majority vote of those voting on the question rather than those participating in the election. That made it easier to adopt amendments, but the frequency of state constitutional amendments has generally been no greater than that for federal amendments over the past century. The amendment process has been used primarily to correct perceived structural defects in the 1851 Constitution and occasionally to confer rights to a group of citizens. The amendatory process, without exception, has not been used to take away from, or deprive any group of citizens of rights they might otherwise be afforded under the document.

So taken against that historical background, how does SJR-7 measure up? SJR-7 cannot be described as correcting any structural defect in the constitution. Proponents say its adoption is necessary to preserve the definition of marriage as a union between one man and one woman, who, unlike same-sex couples, are capable of procreation. This national debate began in earnest when Hawaii's Supreme Court ruled that denying gay marriages in 1993 was unconstitutional. That sparked many states to adopt so-called Defense of Marriage Acts, which specifically defined marriage as the union of one man and one woman. The U.S. Congress enacted a federal Defense of Marriage Law in 1996, which provided that no state would be required to give effect to the law of any other state recognizing same-sex marriage. Once Hawaii's courts, and later Massachusetts', ruled in favor of gay marriages, this inspired proponents of gay marriage bans to push even further with state constitutional bans. Hawaii enacted a constitutional ban in 1998, overturning its high court's ruling. More than half of the states now have constitutional bans, in addition to statutory bans.

Indiana has had its own Defense of Marriage Act for more than a decade. Further, the Indiana Court of Appeals as recently as a couple of years ago ruled that marriage is not a fundamental right under Indiana's Constitution, and that Indiana's DOMA law does not deprive same-sex couples of any right to equal protection under the law in so far as they are not allowed to legally marry. And since the federal DOMA says Indiana does not have to recognize gay marriages recognized by other states, such as Massachusetts, no gay marriage can be legally recognized in the state of Indiana. So if there is no perceived structural defect to be remedied, and there is no new rights being conferred by the amendment, what purpose does SJR-7 advance other than to maintain the status quo? Or does it do more than maintain the status quo?

Proponents of SJR-7 prefer to limit debate to its first paragraph, but the reach of its second paragraph should give many of us pause. It goes beyond defining marriage as a union between one man and one woman by depriving marital status or the legal incidents of marriage to any unmarried couples or groups. This deprivation applies to unmarried straight and gay couples alike. It closes the door to the legal recognitition of civil unions in lieu of marriages in Indiana. It also prevents the government from extending any benefits to unmarried couples. For example, domestic partner benefits offered by IU or Purdue to its employees would become unconstitutional. There's no mistaking the fact SJR-7 does something no other amendment to the Indiana Constitution has accomplished: it diminishes rights. It does this by depriving unmarried couples of any rights enjoyed by married, opposite-sex couples.

The real purpose behind amendments and laws like SJR-7 is to write contemporary religious interpretation of what constitutes a marriage into law. I use the word "contemporary" because we can find many examples of the practice of polygamy in the Bible, which fundamentalist theologians choose to ignore. Limiting marriage to one man and one woman is not the end of the matter for these folks. Their ultimate objective is to overturn our current no-fault divorce laws and replace them with so-called covenant marriages, which are legally much more difficult to dissolve.

This amendment is in the same tradition of failed laws and state constitutional amendments from the last century which banned interracial marriages in most states, including Indiana. The so-called anti-miscegenation laws were enacted at the behest of Christian fundamentalists who insisted upon the separation of the races. Eventually, the Supreme Court overturned those laws in 1967 as a violation of the Equal Protection and Due Process clauses of the 14th Amendment.

Hypocritically, many of the leading advocates of gay marriage bans, such as Advance America's Eric Miller, are themselves divorcees. While proponents insist the bans are necessary to promote procreation within traditional marriages, there is no evidence such bans fulfill their intended purpose. Despite the passage of laws in most states banning gay marriages, the undisputed evidence is that more and more opposite-sex couples are procreating outside of marriage. And the undisputed evidence shows that the prohibition on gay marriages is not slowing the number of opposite-sex couples who choose to end their marriages through divorce.

The legislature should concern itself with the proper role of government in regulating relationships between consenting adults. The real subject of state regulation should be the civil union or contract between consenting adults, gay or straight, without reference to religious doctrine. Each religion should be free to recognize marriages in accordance with its own doctrine, but specific religions should not be permitted under our constitutional system to impose their matrimonial doctrine on the rest of us. And that's what is really behind the agenda of those proposing SJR-7.

I think any legislator planning to vote for SJR-7 should consider the constitutional analysis I've proffered here. Our legislators need to explain to us just why it's so hell fire important that we adopt this amendment, and that we adopt it now. House Speaker Pat Bauer's statement prior to the recent election that it wasn't worth the fight to block the amendment's passage as he did during the Democrat's prior reign in the House simply won't cut it. Any time the legislature exercises its constitutional powers to take away rights from any group of citizens it owes us all a thorough deliberation of the subject matter and rationale for the proposed action. This didn't happen two years ago, and I fear it won't happen again.