Because HJR 6 /3 is very much on many peoples’ minds, I thought it might be helpful to provide a citation to the constitutional basis for amending the Indiana Constitution. It’s found in Article 16, section 1 of the Indiana Constitution and states:
(a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.
(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.
(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.
The question has arisen, what if the language of HJR 3 is amended so that it keeps the first sentence but eliminates the second. In other words:
Only a marriage 9 between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.
A legal status identical or substantially similar to that of marriage for unmarried individuals 12 shall not be valid or recognized.
I did a quick Westlaw search for Art. 16, sec. 1 and could not see that this question had been addressed. But, I would say that if HJR 3 is amended to omit the second sentence, then it becomes something different than the HJR 6 that was passed by the previous General Assembly. The Constitution speaks of “an amendment” and “If the amendment.” The amendment with both sentences is something substantially different than the amendment with just the first sentence. We can’t retroactively decide that the amendment would have passed the first General Assembly if only half of it were included.
I think it’s a fair assumption that if HJR 3 passes this General Assembly without the second sentence, then we have a new proposed Constitutional amendment and it would then need to pass another General Assembly in that form.
I suspect that one or more of the attorneys who work for the legislature may have mentioned this fact in their helpful comments. Why would the legislature proceed, knowing that what they have done is unconstitutional? Is it a way to get out of the mess and have it simply thrown out by a judge who they can claim did it because he was “liberal, atheistic and hated motherhood” or perhaps “because of a technicality”?
I think the first step would be seeing if they try to put it on the ballot after it was changed. If they pass it in the amended form, it wouldn’t be a futile gesture because then they could go ahead and try to pass it with that language again next year or the following year.
From my bar studies class on Indiana constitutional law, the language has to be exactly the same or it is considered a new proposed amendment and the process/ clock starts all over again. While I’m sure it’s never been argued, I think this would be a very simple ruling the the Indiana Supreme Court.
Why would they do this? Because it’s an easy out for most of the folks who HAVE to vote for it because of politics/ the district they represent, but know that it’s a very bad thing (you’d be surprised how many conversations I’ve overheard that include something akin to that sentiment). If they vote for the amendment, they can tell their base/ fundraisers that they supported the amendment, but knew that it had to be more clear in its current format and were only doing their jobs. Makes everyone happy and it allows them to keep their jobs.
I think the commenters are ascribing way too much intelligence to Bosma et al.
Interesting thought on Bosma here: http://www.indianaforefront.com/brian-bosmas-hidden-hand/
This is exactly why I think they will have the votes this time to amend it. It will be close either way. If they amend, they likely will be able too pass it, because a lot of the R opposition rests on that. But their paymaster Eric Miller and the unholy Trinity of Righteousness, Miller, Smith and Clark will likely come unglued. He constantly states it as we need to pass now in the same form as before. Even they admit that even changing one word – check their testimony from previous years – would restart the clock. So, why the rush? What does it matter if this is on the ballot in 2014 or 16?
1) they are running against history and time. If this is not passed quickly, the national story is moving us quickly past this. In addition, the people they could hoodwink to vote for this are quickly passing away or changing their minds. LOOK at how many even now – compared to two years ago – are willing to say, I don’t mind civil unions. Miller and crew purposely put that second sentence in there to stop that possibility. They know that time (and history) will not be kind to their cash cow.
2) let’s look politically. 2014 is an off year election with low voter turnout. That means they have their best chance to slip this by while the marginal voter and young people don’t pay attention — they vote in notoriously low amounts on the off year. It will take a massive GOTV campaign – which I think is already underway – to defeat this. But in 2016 – a much broader electorate comes out. Think Obama type campaign – which Freedom Indjana is already mounting. And then Pence has to “own it” which is not going to get him over 50%.
Might ask why then is Pence th main cheerleader now? Because he desperately wants to be President- and the tea party, evangelical wing is where he wins in Iowa, Sc, and the south.
Doug, I seem to recall a discussion back in 2007 when a similar question about dropping its own second sentence in the second pass through the legislature came up, and it may have been you who brought up a couple of prior Indiana Supreme Court cases seeming to say that if the proper officers in each of the two bodies certified in essence that the amendment had passed in the same form…..that was binding on the courts. While that sounds quite strange given the dropping of a whole substantive sentence, stranger decisions have been issued. Care to comment on that aspect?
Also, Doug, do you think that if the legislature did strip out the second sentence this time the Indiana Supreme Court would consider the case prior to it being submitted, or say that it was only ripe (or whatever term is appropriate here) for adjudication only after it were to pass in November and litigation of some kind brought under it? Depending on the complaint I can see where some standing issues in either case could arise.
The question of the “second sentence” did come up back with SJR-7 in 2005-2008. The “second sentence” was different back then but still considered problematic, and they considered stripping it out but refrained because they would have had to start the clock again. This was the language of SJR-7:
DIGEST OF INTRODUCED BILL
Definition of marriage. Provides that marriage in Indiana consists only of the union of one man and one woman. Provides that Indiana law may not be construed to require that marital status or the legal incidents of marriage be conferred upon unmarried couples or groups.
The proponents have no reason to push the amendment if the second sentence is removed because then it becomes nothing more than a restatement of Indiana’s current Defense of Marriage Act. Everyone knows that the second sentence was always put in the amendment to block civil unions and other work-arounds for same-sex partners, notwithstanding the BS language in that trailer bill. The other shoe Scalia predicted would drop is already hitting ground in a number of other states. The days are numbered on the continued constitutional viability of Indiana’s DOMA. The proponents are pushing rope up a hill at this point and looking quite silly, if not mean-spirited, in continuing to push it.
Maybe I’m giving Bosma too much credit, but I wonder if he’s trying some sort of ploy to make it appear he’s pushed the amendment, while hoping it crashes and burns. With the pressure from Pence and the Christian conservative sing — which doesn’t provide the bulk of their money, but does provide the bulk of Republican votes — Bosma couldn’t simply let the amendment die a quick death in committee, hence the move to another one. However, with more Republican defecting and the business wing putting pressure on to kill this thing, Bosma risks another form of political backlash he ramrods this as is. Perhaps this will be proven true if he allows the second sentence to be stricken, thus restarting the clock, and pretty much waiting for the U.S. Supreme Court to define marriage. Hey, guys, I tried!
Or, if Occam’s Razor is to be believed, Bosma is pushing this because he really wants to make sure gay people can’t get married and that businesses can’t offer domestic partner benefits.
I doubt Bosma personally cares that much about having this in the Constitution. But, politically, he owes and needs to maintain the support of social conservatives who care a lot. If it’s defeated, that alone probably isn’t a bad thing from where he sits. But, it can’t have failed because he was seen as not trying hard enough. Him taking heat for switching committees probably shores up his bona fides in this respect.
Meanwhile, the Indianapolis Bar Association officially comes out against HJR3, in part because of what you might think a benefit its members would stand to reap — an expected mound of litigation.
http://www.indystar.com/story/news/politics/2014/01/27/indianapolis-bar-association-takes-rare-step-in-opposing-hjr-3/4938217/
The association surveyed its members, with the ratio being 73 (against)-20 (no position)- 5 (for).