I just posted a comment at Advance Indiana in response to that blog’s apt criticism of House Minority Leader, Brian Bosma’s proposal to “clarify” the intent of SJR 7. Bosma essentially wants to offer a “statement of legislative intent” to tell the courts what the legislature “really” meant when it passed SJR 7, particularly the second sentence which prohibits a court from construing a law as conveying an incident of marriage to an unmarried couple (even if, presumably, the law conveys an incident of marriage to an unmarried couple.)
First, unlike Congress, Indiana doesn’t do legislative histories. I’ve never seen the Indiana courts go to a resolution of the General Assembly to divine intent. Maybe that’s happened somewhere, I don’t know. But, I do know that the courts won’t go fishing around for legislative intent if the language in the legislation is clear. If the law says “up,” the court won’t pay any attention to a resolution that says the General Assembly really meant “down.”
Seems to me that proposing a clarifying resolution is basically admitting that the General Assembly did not do its job in the first place. It didn’t clearly articulate the law it was seeking to impose. I’m fairly certain this is a feature, not a bug, for certain politicians — if they stated their intent clearly, the electorate would run screaming.
The drafting manual used by Legislative Services when drafting legislation for the Indiana General Assembly says, with respect to “purpose provisions”:
“(2) Purpose Provisions [see also BILL PREAMBLE, Page 25]
A well-drafted act requires no statement of what it seeks to accomplish or the reasons prompting its enactment. Do not include language stating the purpose of an act or reciting the facts upon which an act is predicated unless the included language would be useful in upholding the act against constitutional attack or is necessary to give meaning to a provision for liberal construction.”
There will be no “constitutional attack” here — after all this will *be* the Constitution. If clarity in drafting is a priority in creating ordinary legislation, seems to me it should be doubly so with respect to Constitutional draftsmanship.
Does Bosma actually practice law? This has been a standard of Indiana constitutional law since before 1851.
Sorry, I was in a hurry. Court in less than 45 minutes. I meant to say that legislative has never played a part in Indiana constitutional law or statutory interpretation. Since the 1816 Constitution, the standard has been the plain language of the provision. However, the Supreme Court will look at the 1851 Constitutional Debates. The legislature having no similar legislative history, the amendments are solely judged on their words and the plain meaning of those words.
I still do not believe that Bosma knows a thing about the law. If he does, this is complete nonsense. Cynical nonsense of a most arrogant sort – does he think everyone else in the General Assembly is as ignorant about the law?
I think Rep. Bosma is mostly just disingenuous. He was one of the presenters in the bar review course I took and seemed quite well versed in the law at that time. I passed the bar, in any case. That’s what makes his actions here and in the matter of the legislative, sectarian prayer more troubling than with the average legislator. I’m pretty sure he knows better.
They’re all being disingenuous. Bosma wants the equivalent of what Bush does with every bill he signs – those beloved “signing statements”. Those are bad enough – but this is the Indiana Constitution, for pete’s sake.
The funny thing is, the bill’s supporters are more than willing to offer up moral beacon Brandt Hershman as the guy pushing this in the Senate. It’s that moral hypocrisy that Christians (and I am one) suffer from too many times. “Let he without sin cast the first stone” gets forgotten as a Bible lesson these days.
I mean, I don’t agree with gay marriage, but on the other hand, I don’t think it’s the government’s place to enforce my personal/religious beliefs – because one day, the government could well be enforcing laws against my personal/religious beliefs because another group thinks their wrong. And, honestly, I’m having a real hard time seeing how gay marriage really affects me. I’m more bothered by a guy who’d hogtie his child & beat it to death.
Folks can protest & express their opinion all they want, and I’m OK with that – but as soon as they’re entering the legislative arena with no case other than “we think this is wrong”, they’ve lost my support.
It’s too bad our legislators can’t expend the same effort on issues like property tax reform that all Hoosiers are begging for, as opposed to SJR 7. Then again, maybe that explains why Indiana’s in the shape it’s in.
My guess is he knows better, but he’s got lobbyists coming at him from all angles to get this thing fixed and he sees this as a “solution”. If Cummins, Lilly, and the universities have published publically their opposition, I can only imagine the amount of scrambling with th pro-business lobby behind the scene. Bosma can’t be the only one looking for a way out on SJR-7.
Bosma knows better, or should. He also knows which side his bread is buttered on. I’ve been reading comments on another forum where most of the posters see absolutely nothing wrong with this proposed constitutional amendment. They have no problem with putting a discriminatory provision in the Indiana Constitution (since they believe such a provision won’t affect them), and they couldn’t care less about any unintended consequences. Those are the people Bosma and his ilk are playing to.
Maybe Mr Bosma sees the election of 2008 slipping away from him as he can no longer wedge whack innocent families. Having sat with him as he talked with gay and lesbian activists this fall (after he was no longer Mr. Speaker) I can assure you he seems slick and calm. But under that exterior, he is a wily competitor who will win at all costs.
Hershman on the other hand is less sly and slick. That’s why Bosma has now picked up the lead.
By the way Pila, what site is that? I’d sure like to read something besides my favorite liberal sites, so that I can be reminded of the whack jobs of the right.
Can you post the site?
Idunno: Sorry to admit, Idunno how to post links here. :(
The the forum is on the website of the Palladium-Item newspaper. I believe the link to the main site is http://www.pal-item.com You can probably copy and paste that URL into your browser’s address bar. Enter the forum if you dare. :)
Pila said:
You just did it successfully. :)
The forums seem kind of sprawling, and I don’t have the patience to look through them. Now that you know how to post links, could you provide a more specific one?
Doug must have done that! :)
This link
should get you to the topic. (I didn’t last time, but this time I have embedded the link because the long URLs mess with my sidebar formatting. — Doug)
Okay! Maybe I’m getting this blog mixed up with another one in re: ability to make links. Thanks for cleaning up the one above. :)