Comments on Advance Indiana™: SJR-7 Legal Analysis Full Of Holes

It is instructive to consider the two approaches t...

2007-03-28T14:59:00.000-05:00

It is instructive to consider the two approaches taken by proponents of this language before the United States Congress, and before the Indiana Legislature. Senator Hershman stubbornly maintains that the text is clear, all debate on its meaning to the contrary notwithstanding. He would have us believe that he does not intend it to constrain future legislatures. But he holds tenaciously to the text as written; or rather to the text as borrowed. He got the text from Representative Musgrave's Federal Marriage Amendment, as a casual perusal of the two will demonstrate. He has admitted as much.

When Marilyn Musgrave presented her proposed amendment, objections similar to those we are discussing arose. But in that case, Musgrave, Allard (sponsor in the Senate) and one of the authors, readily dropped the contentious text in favor of one that seemed to all parties unambiguous.

If you are drafting a legal document, it is foolish to insist that your version is perfect if other people see objections to it and can offer alternatives that no one finds ambiguous. What reason could Hershman have to cling stubbornly to the text (it would seem that it is not even his; Judge Bork could have felt that his reputation as a legal drafter was in question, but he is experienced enough to know that his reputation rests on precisely not insisting on keeping text that could be made clearer)? Hershman may simply be stubborn and unclear on the benefits of critical reading of legal texts before they end up in court (proponents of the amendment rely on uncritical reading of the Bible and may lack the practice in examining their own motives and actions that serious legal scholars and scientists have). Or he may have ulterior motives; we are entitled to be suspicious: he has tried to remove domestic partner benefits from public universities before; he could easily be hoping that he can force this murky text through and then exploit it precisely as he now says it cannot be used. By then it would be too late for the state.

Here is the transcript of Judge Bork's testimony and an excerpt from his prepared statement where he agrees that the offending text is unclear and "poorly drafted" and recommends that it be changed to accommodate the very objections that we are now discussing. It is simply dishonest to use Wayne Allard's defense of the language when he was defending precisely the change that Hershman rejects.

Testimony of Judge Robert Bork before the Subcommittee on the Constitution
of the Committee on the Judiciary; House of Representatives; One hundred eighth congress; Second session; on H.J. Res. 56; May 13, 2004:

"Since I had something to do with the drafting of the version of the House amendment proposal, I think I am free to say that I am now not entirely happy with what we did. The first sentence is quite clear. The second sentence, however, which was intended to say that a court should not require civil unions as a matter of constitutional law, only legislatures could do that, some people said, well, the second sentence could be read to say that the legislatures could not do it either.

"Now we are prepared to argue that point, but it is not a point worth arguing because we have no intention of trying to prevent any democratically enacted form of civil unions. So for that reason I agree with Congressman Musgrave that the Senate version is the one that should now be made, that the House version should be made congruent with the Senate version so that it is quite clear that marriage is between a man and a woman and that civil unions are up to the various legislatures in what they may decide. Thus, Vermont, which now has a civil union legislation enacted under coercion of the courts, would be free either to retain or to repeal that legislation.

"The Senate language makes absolutely clear that was intended in the House version from the beginning; and I recommend that that version, the Senate version, be adopted by the House."

From Judge Bork's prepared statement submitted at the same time as the above testimony:

"Objections to this second sentence have convinced me that it is poorly drafted and causes needless controversy. Critics say that, read literally, the sentence would forbid courts to implement legislatively-enacted civil unions. That was not the intent. It was hoped that this objection could be avoided by making the intention of the sentence clear in the debates that would surround the amendment in Congress and, if sent to the states, in the ratification debates. It was thought, moreover, that the word ‘‘construed’’ would indicate that the sentence was intended merely to restrain activists courts from requiring civil unions against the desires of the legislature involved.

"There is no point in debating this matter when altering the language of the second sentence can make the point clear. For that reason, I recommend the version of the second sentence contained in Senate Joint Resolution 30: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." There is no doubt whatever, that this sentence leaves legislatures free to provide for civil unions if they wish. Thus, Vermont, which now has civil union legislation enacted under the coercion of its supreme court, would be free either to retain or repeal that legislation. The Senate language makes absolutely clear what was intended in the House version of the Federal Marriage Amendment."

That said lets keep focused and press on. The Cla...

2007-03-28T10:23:00.000-05:00

That said lets keep focused and press on. The Clark/Miller "gang" is pulling out all the stops and has launched a "no holds barred" campaign of destruction. They will resort to anything to get their way.

I wish the committee would vote already before anymore media damage is orchestrated by these insane people.

What makes you think I'm not involved, not aware o...

2007-03-28T09:47:00.000-05:00

What makes you think I'm not involved, not aware of the efforts being made? Kinda presumptive to think otherwise.

We're all on the same team, but the paid folks have been sorely lacking in organizing and lobbying skills. Just a fact.

I know multiple folks who have done much letter-writing, phone calling and personal legsialtor and opinion-maker visits.

Shoulders to the wheel...it is important. But it could've been so much different...

And what has "anonymous" done in Fort Wayne, Evans...

2007-03-28T09:13:00.000-05:00

And what has "anonymous" done in Fort Wayne, Evansville, Bloomington, South Bend, Lafayette, Richmond and Gary? Does he/she have any idea what IE has done? Or what coalitions have been forged across the state? Or maybe any idea of what actually IS happening in any of those cities outside Indianapolis. Easy to criticize from the sidelines. Roll up your sleeves and get involved.

Let's realize we are all on the same team and have the same goal ahead of us.

Anonymous said "never under-estimate what a few we...

2007-03-28T07:59:00.000-05:00

Anonymous said "never under-estimate what a few well-organized citizens can accomplish. I choose to believe this could have happened, if IE had been better prepared."

It's not over yet.

Uh, Wilson, they raised enough to pay our lobbyist...

2007-03-28T04:33:00.000-05:00

Uh, Wilson, they raised enough to pay our lobbyists, by last reports, over 20 large in the last session. A little cost-benefit analysis is in order.

A volunteer effort, fanned out across the state, but orchestrated by the lobbying group, is what not-for-profits do annually.

It's not brain surgery. But it is work. Orchestrating public opinion "back home in the district" actually does move legislators. It's a mining effort, but well worth the time.

I am certain that with a minimum of staff time, a similar effort could've been raised among church groups, newspapers, political allies and similar organizations across Indiana. The NFP Interfaith Coalition has a pastoral letter signed by over 300 statewide ministers, for example. That's powerful.

It doesn't all happen in Indianapolis.

We may not have Eric Miller's resources. I think his fund-raising and expenditures are obscene. But never under-estimate what a few well-organized citizens can accomplish. I choose to believe this could have happened, if IE had been better prepared.

I understand that so far, no Hoosier newspaper has...

2007-03-27T19:40:00.000-05:00

I understand that so far, no Hoosier newspaper has endorsed SJR-7 but many have questioned the need for such an Anti-Marriage Amendment.

IE is not some wealthy, alien entity deigning to do stuff for LGBT Hoosiers. They do what they can with what resources they have. The wingers peddle stories of "rich queens" dominating politics with cash - sadly, IE doesnt have beaucoup bucks...

Actually, that's the one area where the proponents...

2007-03-27T19:34:00.000-05:00

Actually, that's the one area where the proponents have done very well. Every newspaper in the state of any note has editorialized against SJR-7. I believe the blogs have played a critical role in raising the tough questions about the amendment. Many editorial writer have picked up on those questions and used them as a basis for their opposition.

Just wanted to point out, friend, that circulating...

2007-03-27T19:02:00.000-05:00

Just wanted to point out, friend, that circulating proposed op-ed pieces, is one more job IE should've done for us.

A complete lobbying job involves more than just the legislature. Opinion makers needed an across-the-board assault, beginning last fall.