My Testimony in Opposition to Senate Joint Resolution 13 (Proposed Amendment to the Indiana Constitution to Define Marriage and Prohibit Civil Unions)

On January 20, 2009, I testified before the Indiana Senate Judiciary Committee. The committee was considering Senate Joint Resolution 13 (SJR 13) which would amend the Indiana Constitution to define marriage and to prohibit civil unions. Here is the full text of the proposed amendment which would, if adopted, be added to Indiana’s Bill of Rights:

Only a marriage 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 shall not be valid or recognized.

I usually endeavor to keep separate my personal thoughts and opinions from those that I espouse on behalf of organizations with which I am affiliated (in particular the Indianapolis Jewish Community Relations Council for which I currently serve as president). My testimony before the Judiciary Committee was on behalf of the JCRC and in my capacity as president of that organization. Nevertheless, given the importance of the issue (it is, after all, a proposed amendment to Indiana’s Constitution) and the fact that my testimony is not only public record but was also aired on the Senate’s live web feed (and will apparently be available on the Senate’s archived feed at some point in the future), I have decided to reprint my prepared testimony here. I want to take a moment and give due credit to Mark Sniderman, a friend and colleague on the JCRC Board, who testified against SJR 7 (the predecessor to SJR 13) back in 2008. My testimony was based, in part, on his prepared remarks; I deleted some and added some, but he deserves credit for preparing a well thought out and articulated presentation that I was able to use as a framework for my remarks.

I’m sure that my actual words were not identical to my prepared testimony. Furthermore, in order to meet the five minute time limit that I was asked to observe, I selectively edited my prepared testimony as I went; I’ve endeavored to indicate the provisions that I omitted in red. In addition, I contemporaneously added to my testimony to address some of the arguments (or lack thereof) that had been offered by proponents of SJR 13. I’ve also endeavored to provide at least an idea of what that portion of my testimony consisted of in green.

Finally, I want to note that the JRCR has not taken a position on same-sex marriage and I was not testifying in favor of same-sex marriage (though I personally support it). Rather, JCRC’s position, as I tried to articulate in my testimony, is that we oppose efforts to amend the Constitution to restrict, rather than enhance, rights.

Thank you Mr. Chair, Ranking Member, and Members of the Committee. My name is Michael Wallack. I am an attorney in private practice and I am privileged to rise on behalf of and in my capacity as the President of the Indianapolis Jewish Community Relations Council, in opposition to Senate Joint Resolution 13. The JCRC is comprised of representatives from every synagogue and Jewish membership organization in greater Indianapolis.

Our Jewish community supports the rule of law to assure equal rights, and we oppose constitutional amendments that restrict, rather than enhance, the rights of Hoosiers. Thus, we accordingly oppose SJR 13.

I believe that it is important to understand that we did not arrive at our position without due consideration; in fact, our community engaged in a process of learning, debate, and discussion, that lasted for nearly a year before we adopted our position. Several supporters of SJR 13 (and its predecessor) participated in that process in an open forum that we hosted on the subject. But eventually our community did adopt a position in opposition to the effort to amend our State’s Constitution.

We unconditionally support the core values of religious liberty, the separation of church and state; the safeguarding and advancement of civil rights; and the principle of equal protection under the law.

Jewish tradition teaches that each individual life is sacred and of infinite value. We are commanded to assist the less fortunate; to speak for those who cannot be heard; to stand by those who are unjustly treated; to be animated by the spirit of tikkun olam — the repair and mending of the world.

We Jews have known discrimination merely for being, or appearing to be, different; from the politest snub to unspeakably worse. Discrimination against any group of people is an insult to Jewish values. We are committed to a society that is just, compassionate, and fully democratic. Moreover, we strongly value the notion of a pluralistic, democratic society that, while recognizing the will of the majority, protects the rights of the minority.

What, then, do we owe one another as citizens? At the very least, we cannot decide that some people should be forever barred from possessing the rights and benefits of others, if the voters, through their elected representatives, want benefits and rights to be shared. Federal and state laws now grant over 1,100 rights and benefits to married couples and their families but deny them to unmarried couples. However long they live together, however deep their commitment to one another, by law unmarried couples may not possess the right to joint ownership and transfer of property; the right to participate in pension and social security benefits, health insurance programs, health care decisions, and hospital visitation, among others.

These rights are bedrock. But the proposed amendment would forever deny them to unmarried couples because — and only because — some declare their love to be objectionable.

Current and future legislators, the people’s representatives, would be powerless to assist, however urgent the need, however appropriate the assistance. The Constitution itself would have to be amended, yet again.

Charity, compassion, benevolence, a commitment to equal respect and dignity help determine the quality of life in a country. But the animating principle of the United States is that the rights of the citizens cannot be dependent merely on charity or good will.

Our state, like every other, needs to become more just, not less. Enshrining discrimination into our State’s Constitution runs contrary to that goal.

The JCRC is also dedicated to the separation of church and state. We affirm the right of faith communities to prescribe their own standards for recognizing religious marriage, for it is religious ceremony, not civil law, that sanctifies marriage. Our Jewish community, like most faith communities, will not surrender to the government the power to determine what merits sanctification in our own tradition.

But SJR 13 would nullify a right that religious communities have held since the founding of this country. It would dictate to religious faiths what they can and cannot sanctify in their houses of worship. It would establish a precedent for the state to narrow the realm of religious liberty when it wishes – that is to say, whenever it is popular to do so. What if it become popular to prohibit those of differing faiths to marry, much as it was once popular to prevent those of different skin color to marry? Are those popular values that should be enshrined in a Constitution?

SJR 13 would embed the religious doctrine of some into our state Constitution, to the exclusion of others. It would undermine the principle of separation of church and state – the very principle that ensures religious liberty for people of all faiths and beliefs.

And, let there be no mistake, religious liberty is the principle to which we are committed. The JCRC deeply respects the sincere convictions of religious groups that believe that same-sex marriage is prohibited by passages found in their authoritative religious texts. We do not, however, believe that some religious groups have the right to use the government to impose their religious beliefs upon others. The Indiana Constitution includes numerous provisions that describe the relationship between the church and state, and Article I, Section 4 states it clearly:

No preference shall be given, by law, to any creed, religious society, or mode of worship... .

Ind. Const., Article I, § 4 (Freedom of Religion). The Equal Privileges and Immunities clause trumpets the same principle:

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

Ind. Const., Article I, § 23. These constitutional provisions are bold and manifest: our legal rights shall not be dictated by religious beliefs; nor should civil laws restrict the free exercise of religion; and when our government provides benefits, it must do so to all on equal footing

We affirm the rule of law. For laws to work, they must be clear. Their working must be predictable. Their consequences must be measured. But the rhetoric surrounding this Amendment is feverish. Perhaps worse, it is cloudy and obscure. Not one legislator has offered a clear definition of “status identical or substantially similar to that of marriage”. The mere existence of so much contention over the meaning and effect of this Amendment is reason enough to stop. Let us all agree to this rule of civil society: before we amend our Constitution, we should understand, broadly and generally, the effects of our actions.

As a result of our commitment to our core values, the Indianapolis JCRC:

1) opposes any constitutional amendment that constricts rather than enhances rights; and we therefore oppose SJR 13; and

2) opposes any effort that would diminish the authority of clergy to practice their own religious requirements regarding marriage.

To those of you who will vote against this proposed amendment, I offer our gratitude.

To those who have no doubts about the merits of the amendment, I say to you: you have a duty to question the wisdom of amending the Constitution itself to impose the religious views of some who seek to restrict the civil rights of others. Laws can be passed, then repealed. Amendments to the Constitution can hardly ever be reversed, and never quickly.

To those who may have doubts and concerns about this amendment, I ask only this: be generous in spirit, defend the principle of religious liberty, and lead us where we know -- in our very best moments -- we ought to go.

[I noted that proponents of SJR 13 not only failed, but actually made no attempt at all, to explain what the “threat” to marriage was. I explained that none of the proponents had explained how their marriages or families would be harmed by same-sex marriage and I posited that they did not even attempt to explain this threat because they recognized that the perception of a threat was patently false.]

It is also worth noting that this Amendment will not create any new jobs in Indiana; it will not solve our State’s deficit; it will not be a cure to tax woes; it will not improve our schools or our roads; it will not reduce crime or find more homes for orphaned children. Given all of these issues, is an amendment to the Constitution solely for the purpose of restricting rights really the best thing for this General Assembly to focus upon?

I have come before you on behalf of the Indianapolis Jewish Community Relations Council. But I am not less an American for being a Jew. I ask you, I urge you: do not make government the agent of one religious doctrine. Many serve G-d. It is not for the State to decide that Protestant prevails over Catholic; that Christian prevails over Jew; that Jew prevails over Muslim, Buddhist, Hindu, or any other faith.

I thank you for your time and consideration.

None of the senators asked me any questions. It is worth noting that several senators, in particular Sen. Greg Taylor (D-Indianapolis) and Sen. Tim Lanane (D-Madison County), asked numerous questions, both of proponents and opponents of SJR 13; moreover, it is also worth noting, as Sen. Taylor did in explaining his vote, that the Republican senators asked very few (if any) questions during the entire hearing.

The Democratic senators each gave brief speeches to explain their votes against SJR 13. The Republican senators simply voted “yes”. In the end, SJR 13 was approved by the committee by a vote of 6-4. All four Democrats voted against SJR 13; six of the seven Republicans voted in favor (one was not in the chambers when the vote was taken).

Finally, as long as I’m on the subject, I want to take a few moments to address (briefly; I plan to come back and address some of these points in much more detail at another time) some of the arguments made by proponents of SJR 13:

• James Bopp, Jr., claimed that courts have “seized control” of the issue of gay marriage. While courts have certainly been involved in the issue, to suggest that they’ve “seized control” (his phrase) is misleading, at best. If we are to accept his suggestion, then it must also be true that courts “seized control” of issues like segregation and civil rights (remember Brown v. Board of Education) or, more recently, gun control (Heller and the Chicago gun control cases).
• Bopp also suggested that courts shouldn’t have a role in determining the legality of gay marriage because the “people will have spoken”. Of course that argument completely misses the point of the role of the courts in our system that recognizes a separation of powers. The people can do a lot of things through their legislators or referenda, but that doesn’t make those things right or legal. I suspect that a majority of people could be convinced to outlaw Islam or require schoolchildren to pray to Jesus; it would be up to the courts to recognize that doing so violates the Constitution. When people like Bopp make this argument, what they’re really saying is that we don’t want to give the courts the chance to tell us that legislation that we’ve proposed does not conform to the rights and privileges granted by the Constitution (or, more correctly stated, retained by the people). It is critical to remember that in our constitutional system, the will of the majority cannot trump the rights of the minority. That is precisely why we have a Bill of Rights in the first place.
• Bopp also argued that the possibility of litigation over Indiana’s current prohibition on same-sex marriage is reason enough to amend the Constitution. By that logic, however, any statute passed by the General Assembly that was, in any way, controversial, should I suppose be in the form of an constitutional amendment because virtually all legislation draws litigation of one form or another. But that is not the purpose of a Constitution.
• The best (funniest?) moment (at least to me) of Bopp’s testimony came in response to a question (from either Sen. Lanane or Sen. Taylor). Bopp said that the amendment was necessary to protect marriage from the General Assembly and the Courts; he said that was the role of the Constitution: to protect rights from the General Assembly and the Courts (oddly enough, Tim Tracy, speaking on behalf of the Indiana Family Institute, said almost the exact same thing in response to a question about the separation of powers). I don’t think that Bopp (or Tracy) quite recognized what he really said, though he was precisely right. The Constitution does protect the rights of Hoosiers. Defining marriage in a way that restricts rights is, in actuality, the exact inverse of the what the Bill of Rights does.
• Curt Smith (speaking on behalf of the Indiana Family Institute) argued that the limited definition of marriage should be added to the Constitution because “marriage is a unique, social good”. But if marriage is, indeed, a social good, shouldn’t it be encouraged in various forms, including same-sex marriage? Why is one marriage a social good while another marriage is a “threat”? And how does that impact civil unions? Wouldn’t they be a social good, too?
• A Hispanic pastor (I didn’t hear his name) argued that the Constitution should be amended because the “Bible is the infallible word of G-d”, because “G-d discriminates against right and wrong”, and that homosexuality was a behavior (a choice) that was wrong (thus discrimination against gays is acceptable, a position that none of the other proponents adopted…). He also said that referring to same-sex marriage as a civil rights issue was “offensive” and “disgusting”. I don’t think that I really need to respond to his arguments beyond saying that I found much of his testimony to be both offensive and disgusting. (Thankfully his testimony was offset by the testimony of Rev. Linda McRae of Central Christian Church who talked about what the Bible really says about marriage.)
• Micah Clark (I think) claimed that “if marriage can mean anything, it ultimately means nothing.” I’m not really sure what this means; I suspect that it is his attempt to make the slippery slope argument (oooh, if we allow gays to marry, what will be next? Polygamy? Incest? Pedophilia? Bestiality?). Of course, these same arguments were used to support anti-miscegenation (laws against interracial marriage).
• Glenn Tebbe, Executive Director of the Indiana Catholic Conference, argued that marriage should be protected in the Constitution (again, what is the threat?) because marriage is a “faithful lifelong partnership”. Of course, by that reasoning, divorce should probably be prohibited in the Constitution, too.
• Finally, Eric Miller (of Advance America) claimed that protecting marriage (again, from what?) was “in the best interests of families and children”. Of course, he didn’t get around to explaining how “protecting” marriage was in the best interests of families and children. After all, wouldn’t a married same-sex couple be a “family”? Wouldn’t children be better off in a committed, loving, two-parent relationship than in a single-parent family, let alone in foster care or an orphanage?

Those are the sorts of arguments being advanced by the opponents of same-sex marriage and the proponents of the constitutional amendment. One other point worth making: Not a single one of the people who testified in favor of SJR 13 offered any reason whatsoever as to why civil unions were bad, let alone why the General Assembly should be prohibited from adopting civil union legislation in the future should that be the will of voters expressed at the polls.

Please call your senator (and representative, for that matter) and tell them to oppose SJR 13. You don’t have to support same-sex marriage; but please tell our legislators not to amend Indiana’s Constitutions to restrict, rather than enhance, the rights of Hoosiers.