A chance for me to share my thoughts (or, maybe just vent a bit).
Friday, January 31, 2014
The Amendment (HJR-3 and the Process of Amending Indiana’s Constitution)
Earlier this week, the Indiana House of Representatives passed an amended version of House Joint Resolution 3 (HJR-3), the proposed constitutional amendment to prohibit same-sex marriages. The amended version of HJR-3 now goes to the Indiana Senate for consideration. The question that some are posing is whether the amended version of HJR-3, if passed by the Senate, could be on the ballot for Indiana voters in November 2014. Though some are trying to make this sound like an open issue, I think that the language of Indiana’s Constitution makes it clear that the amended version of HJR-3 could only be placed on the ballot for Hoosier voters if approved by the Indiana General Assembly in 2015 or 2016 (and thus, not be eligible to be on the ballot until November 2016).
First, let’s look at the language of the Indiana Constitution (and if you’re a Hoosier and you’ve never read Indiana’s Constitution, it might be worth spending a bit of your time to do so; you might be surprised by a few of the provisions it contains). The operative provision for amending the Constitution is Article 16, Section 1:
Section 1. (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 key thing to note in this language is the use of “the” and “an” when referring to a proposed amendment to the Constitution. Section 1(a) states that if “the amendment” is agreed to, then “the proposed amendment shall … be entered … and referred to the General Assembly … chosen at the next general election”. In other words, the Constitution looks at a proposed amendment as a whole, single entity, not a series of piecemeal words.
So let’s go back to 2011 when HJR-6 (the numbering previously assigned to what is now HJR-3) was passed by both chambers of the Indiana General Assembly. Here is the text of HJR-6 in its entirety:
A JOINT RESOLUTION proposing an amendment to Article 1 of the Indiana Constitution concerning marriage.
Be it resolved by the General Assembly of the State of Indiana:
SECTION 1. The following amendment to the Constitution of the State of Indiana is proposed and agreed to by this, the One Hundred Seventeenth General Assembly of the State of Indiana, and is referred to the next General Assembly for reconsideration and agreement.
SECTION 2. ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 38. 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.
Note, once again, the use of “an” and “the” to refer to the proposed amendment. The language refers to proposing “an amendment” and Section 1 makes specific mention of referring the “following amendment” to the next General Assembly. So what precisely was referred to the “next General Assembly” (in other words, the General Assembly elected in November 2012)?
A NEW SECTION TO READ AS FOLLOWS: Section 38. 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.
The 2011 Indiana General Assembly proposed to add Section 38 to Indiana’s Bill of Rights that would consist of the specified two sentences. Nothing more. And nothing less. That was “the amendment” that was proposed by the General Assembly in 2011. It was a single, unified amendment; it wasn’t two amendments of one sentence each. It wasn’t a proposed amendment subject to being severed. It was “an amendment” and it was referred to the next General Assembly.
Which brings me to the current incarnation of HJR-3, as amended:
A JOINT RESOLUTION proposing an amendment to Article 1 of the Constitution of the State of Indiana by adding a new Section concerning marriage.
Be it resolved by the General Assembly of the State of Indiana:
SECTION 1. The following amendment to the Constitution of the State of Indiana is proposed and agreed to by this, the One Hundred Eighteenth General Assembly of the State of Indiana, and is referred to the next General Assembly for reconsideration and agreement.
SECTION 2. ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 38. Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana.
Now, the first thing to note is that the amended version of HJR-3 that was passed by the House specifically notes that is “referred to the next General Assembly for reconsideration and agreement” in the same way that HJR-6, when passed in 2011, was referred to the current General Assembly for reconsideration and agreement. That language alone should put the issue to rest; after all, if the amendment that is voted upon and agreed to by the General Assembly specifically states that it is referred to the next General Assembly for reconsideration and agreement, then it is hard to see how anyone could argue that the One Hundred Nineteenth General Assembly would not need to reconsider and agree to the proposed amendment before it could be put before Hoosier voters.
Moreover, when HJR-6 was passed in 2011 and referred to the current General Assembly for review, it consisted of two sentences (think of them as the “marriage provision” and the “civil union provision”). What was the purpose of referring HJR-6 to the current General Assembly? It was for the General Assembly to reconsider and agree. This week, the House of Representatives of the Indiana General Assembly did reconsider the language of HJR-6 (as embodied in HJR-3) and they did not agree. Instead, the House voted to amend that language by deleting the civil union provision.
I suppose that the General Assembly, when it passed HJR-6 in 2011, could have given the next General Assembly the option to agree to all of the language or just the first sentence. But that isn’t what happened. In 2011, the General Assembly passed an amendment and referred that amendment, as a whole, to the next General Assembly for reconsideration.
Obviously, the Senate could “un-amend” HJR-3 to make its language identical to HJR-6. In that case, HJR-3 would go back to the House for another vote. So, if both the House and Senate were to pass HJR-3 with language identical to the amendment passed in 2011, then it would satisfy the requirements of Article 16 Section 1 of the Indiana Constitution and would go before voters in November 2014. I’m hoping that either the Senate doesn’t have the votes necessary to “un-amend” HJR-3 or that, even if the Senate does so, the House won’t approve that version of the proposed amendment (and given that 52 members of the House were willing to amend the language in the first place, it becomes anybody’s guess as to what would happen if the House is asked to vote on the original language of HJR-3).
But there is another possibility worth considering. What if the Senate can’t muster the support to add the problematic second sentence (the civil union provision) back into HJR-3, but does amend HJR-3 to remove the language referring the proposed amendment to the next General Assembly? And what happens if the House votes on and agrees to that version of HJR-3? Would an HJR-3 that contained a single sentence that is identical to one of the sentences in HJR-6 be eligible to go before Hoosier voters in November 2014?
I don’t think so.
Remember what I wrote about above with regard to all of the uses of “an” and “the” and things the “following amendment”? I think that it would be laughable for anyone to argue that requirement that the “next General Assembly” reconsider and agree to a proposed amendment be satisfied by passage of only a part of the original amendment. The two-sentence version of HJR-6 is simply not the same amendment as the one-sentence version of HJR-3. Do we know that all of those who voted for the HJR-6 in 2011 would have voted for it without the civil union provision? We can speculate that they would have, but we don’t know because they didn’t take that vote.
Of course the best resolution of this entire mess would be for either the House or Senate to simply vote down HJR-3, whether with the original or amended language. Doing so would spare Indiana the costly and divisive campaign to determine whether the amendment should be on the ballot and whether, if on the ballot, it should be adopted. And it would spare Indiana the indignity of voting, in the second decade of the 21st Century, to enshrine discrimination into the Constitution.
Update: I meant to mention this story and quotation from Indiana Attorney General Greg Zoeller:
One alternative that has been floated is removing the so-called “second sentence” in the amendment, which extends the ban to civil unions and employer benefits. But legislative leaders are split on whether altering the language would reset the clock on the state’s lengthy constitutional amendment process.
Zoeller said Friday he had looked into the issue but could not find a clear precedent.
“There hasn’t been a case directly on point,” he said. “So had there been a question asked and answered, I’d be able to point to something specifically for people to refer to. The fact that it has not been fully addressed leaves it open to supposition as to what a federal court might do or what a state court might do.”
I find it interesting that Attorney General Zoeller talks about case law on the subject but makes no reference to the actual language of the Indiana Constitution. Hmm. Shouldn’t people, at least as a starting point, refer to the language of the Constitution and, perhaps, to the language of HJR-6?
For those who are curious, there is a single Indiana Supreme Court (Roeschlein v. Thomas, 280 N.E.2d 581 (1972)) case that discusses the amendment process, but doesn’t involve the issue that would be presented if the amended version of HJR-3 were to be adopted. Rather, in that case, the issue involved alleged defects in the technicalities of the passage of the proposed amendment by the General Assembly, rather than an examination of the impact of passage of versions of an amendment containing different language.
Sec. 2. The liberty of a parent to direct the upbringing, education, and care of the parent’s child is a fundamental right.
Sec. 3. A governmental entity may not infringe on the right described under section 2 of this chapter without demonstrating that the governmental entity's governmental interest as applied to the person is of the highest order and not otherwise served.
The bill also includes a definition of “governmental entity” and some other technical elements. But the text above is the “meat” of the proposed legislation.
So what in the world: (a) was SB100 aimed at; and (b) would SB100 actually do?
My initial thought was that SB100 was intended to be a mechanism whereby a parent could opt a child out of certain mandated curriculum in a public school. You don’t want your child to learn about evolution, climate change, world religions, or whatever, then just claim your SB100 parental “liberty” and — boom — your child is excused (unless the state demonstrates that the curriculum in question is “of the highest order and not otherwise served”).
But how else might SB100’s notion of the fundamental right of parental liberty be used in practice? Well, what about vaccinations (Sen. Kruse has also introduced a bill to weaken vaccination requirements)? What about concussion baseline testing or prohibition on athletic participation following a concussion (my child won’t get that football scholarship if he doesn’t play Friday night…)? School uniforms or even a school dress code (I think my kid should be allowed to wear his pants down past his waist)? ISTEP testing (I don’t believe in standardized tests)? Core 40 curriculum credit requirements (my parental liberty is infringed if my kid has to take biology, so gee, Mr. Public School Principal, you have to graduate my kid even though he didn’t take any biology classes). Safety regulations for schools and pre-schools (I should have the right to send my kid to a preschool that doesn’t have fire exits or running water)? Prohibitions on bringing guns into classrooms (I want my kid to be safe, and so what if that makes other kids less safe)? And those are just a few things that I’ve thought about just for schools.
What about elsewhere? Could a parent claim “parental liberty” as a reason that child labor laws couldn’t be enforced (I need the income and my kid needs to learn the value of hard work)? How about car seats for infants and toddlers (I like to have my kid in the front seat next to me so I can tickle him at stoplights)? For that matter think of any of the host of laws that we have regarding parenting and the protection of children. Wouldn’t virtually all of those laws be at risk? Why can’t someone sell nude photos of their child on the Internet or give their child a bottle of vodka and a pack of cigarettes? After all, parental “liberty” is a “fundamental right” … or would be if SB100 is enacted. Curfew? Speed limits? Laws against drugs? I can see someone (probably wearing a tinfoil hat or waving a “Don’t Tread on Me” Gadsden flag) making the argument in almost any of these cases.
For that matter, think of the cases where people elect not to provide medical treatment to sick children (who often die as a result). Under the parental liberty notion of SB100 (which makes specific reference to “care”), it would seem that the government might have a very difficult time forcing the parent to allow medical treatment for the child, especially if the parent said that the interest in the child’s health was “otherwise served” by prayer. Or what about a judge’s ruling in a divorce custody dispute? How might “liberty” be impacted in that situation?
And note that the SB100 says not just that to be enforced the law must be of the “highest order” but also that the calculus is based, not just on application of the law to society in general or a class of people in particular (i.e., children, or children under 8 years old, or whatever), but rather, “as applied to the person”. Thus, it doesn’t matter if protecting children in auto accidents is of the “highest order”; rather, the only query is whether protecting this particular child is of the “highest order” and not otherwise served.
There is one other thing that is missing from this bill and which may be the most important concept: What about the liberty of the child? So we’re recognizing that a parent has a fundamental right to “direct the upbringing, education, and care” of the child, but what about the child’s fundamental right to good upbringing, a quality education, and appropriate care? What about the child’s fundament right to be free of an abusive parent or a parent who is willing to put the child at risk? Why isn’t that liberty interest a fundamental right?
You have to wonder what Sen. Kruse was thinking about when he wrote (or had Legislative Services write) SB100. But then given some of the prior bills that Sen. Kruse has introduced, we probably shouldn't be too surprised that he would offer a bill like SB100. What we should be surprised about (well, maybe not), is that voters in Indiana would elect someone like Sen. Kruse to office in the first place and then continue to reelect him (he’s in his 3rd term, I believe).
Oh, and did I forget to mention that the Republicans who control the Indiana Senate have appointed Sen. Kruse to be the chair of the Education and Career Development Committee? Seriously.
A Closer Examination of The Indianapolis Star’s “Gay Marriage Ban: The Case Against”
This past weekend, the front page of The Indianapolis Star featured companion articles laying out the case for (Gay marriage ban: The case for) and against (Gay marriage ban: The case against) HJR-3, the proposal to amend Indiana’s Constitution to ban same-sex marriage or anything substantially similar to marriage. What I want to do here is to go through and comment upon the article laying out the case for HJR-3 and amending the Constitution (or, for those easily confused, the case against same-sex marriage). One thing to keep in mind, I think, is that it seems that it should be the obligation of those who want to amend the Constitution to make their case; amending the Constitution should not be the default position.
Warning: This is a long post. But the issues are important. (Also, for what it’s worth, the bulk of this post was written before Speaker Bosma decided to move deliberation of HJR-3 from the Judiciary committee to the Elections committee.)
Before diving into the article, it’s worth remembering the language of the proposed amendment:
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.
So, with that in mind, I’m just going to embed the entire article and offer some comments, paragraph by paragraph. (Note that I’m embedding the entire article to make this comment and criticism easier to follow and in the likely event that at some future date the text is no longer available on the website of The Indianapolis Star. I believe that embedding the text here for the non-commercial purpose of education, comment, and criticism falls within the “fair use” provisions of copyright law.) The original article is presented in green.
When the Rev. Ron Johnson Jr. was still a teen, his parents began opening their home on Sundays to people in the community who were having marital problems, people who were separated or divorced, and even singles giving thought to taking the plunge for the first time.
Take note of the fact that the first person featured in the article is a Christian pastor.
His father, the younger Johnson recalls, would ask a woman how her week went and she might turn and scowl at her husband and say it was rough because he has anger issues. The elder Johnson would ask the man about his temper and maybe even get a public confession. Then he’d turn to the other men in the group and ask if anyone else was wired with a short fuse. Inevitably, hands would go up. The discussion would go on from there.
“It was Jerry Springer on Holy Spirit steroids,” Johnson said.
The signs of success were immediate. What started with a few couples exploded quickly to 80 people streaming into the family home for Sunday marriage counseling sessions that might go on for hours. Thirty years later, the Sunday sessions continue, but at the Living Stones Church in Crown Point, where the younger Johnson is now the pastor.
I think that Rev. Johnson (and his father) should be praised for the work that they’ve been doing. I obviously have nothing against marriage counseling or efforts to help resolve problems among any people. But…
Marriage — the traditional, heterosexual, lifelong, covenant-with-God kind — is serious business for Johnson. Not just because he has been married for 29 years and has eight children, but because he leads an alliance of pastors pushing for a constitutional amendment that would indelibly define marriage in Indiana as between one man and one woman.
Think about that for a moment. Rev. Johnson leads an alliance of clergy who want to amend the law that governs our secular state. For what it’s worth, can you imagine the outrage if a group of Muslim Imams were working together to change the Indiana Constitution to reflect Islamic law? We already have Indiana legislators working on bills to keep Islamic law from even being considered in Indiana. And yet we have an alliance of Christian pastors seeking to impose their particular religious viewpoint, not just into law, but into the Constitution itself.
Moreover note that the type of marriage that Rev. Johnson is concerned with is the “covenant-with-God kind” or marriage. Perhaps Rev. Johnson is not aware that not everyone in Indiana thinks of marriage in a “covenant-with-God” way, especially those Hoosiers are may not worship or believe in a deity or come from a faith tradition in which marriage has a different religious meaning. We should see the dangers, at the outset, of thinking about our laws in terms of “covenant-with-God” issues.
Johnson and others pushing hardest for the amendment are concerned that the time-honored institution is in trouble from those who want to change its definition into something much more abstract. Failure to pass the amendment means an activist judge could strike down Indiana’s existing marriage law, they fear.
In addition, note that this is really the only explanation of why we need to amend the Constitution instead of just relying on the existing law that bans same-sex marriage (and as I pointed out in last week’s post, that argument is essentially a fallacy). And note that this argument totally fails to address the second sentence of HJR-3 that would prevent a future General Assembly from adopting civil unions or domestic partnerships.
Opening Pandora’s box?
If same-sex marriages were to become legal, they say, the same arguments used in the current debate could be applied to new forms of marriage and sexuality. Already,there are organizations that exist to promote polygamy — not necessarily in Indiana, but nationally — and some see that as the next domino to fall.
One thing worth noting is how quickly opponents of marriage equality move the goal posts and stop talking about same-sex marriage and start talking, instead, about polygamy, bestiality, incest, children, and inanimate objects. They can’t keep the discussion on track, perhaps because they know that they’re losing, and thus quickly toss in straw man arguments or worry about the so-called slippery slope. Discussions about polygamy and so forth are important discussions, but they’re not the issue at hand. Moreover, note that Indiana is not presently even discussing whether to legalize same-sex marriages. Rather, the issue is whether to reinforce the existing law that prohibits same-sex marriages with a constitutional prohibition against same-sex marriage that would also prevent the Indiana General Assembly from permitting civil unions or domestic partnerships. So the issue, despite what you’ll keep hearing from those advocating for HJR-3 is not whether to permit same-sex marriage but rather just how illegal we really want to make it.
“There's an old African proverb I came across that says, ‘Don't move a fence until you know why it was put there.’ We’re getting ready to move some fences here,” Johnson said.
Again, see my preceding paragraph. We’re not talking about moving any fences. Moreover, under that worldview, we should never seek to solve problems, I guess, until we can identify every possible consequence and outcome. Query, for example, whether Rev. Johnson would have supported keeping “separate but equal” in the law until we “understood” why some people thought blacks and whites should be kept separate; would he have supported keeping anti-miscegenation laws until we understood just what life might be like for multi-racial children? Isn’t that really what he’s saying about same-sex marriages today? That being said, I do find the analogy of a fence to be somewhat interesting: Those who we “favor” get to be on one side of the fence, but those who are disfavored by the majority have to stay on that side of the fence. You know, just like how blacks had to sit on the back of the bus, how some communities want to keep Muslims from erecting mosques, or how some legislators want to keep Spanish-speaking Latinos from full participation in our system until they learn English. One America on one side of the fence and another America on the other side of the fence is not really how I view America.
“We are literally opening a Pandora’s box of perversion in this country,” he said, “and there will be no stopping where this thing goes.”
Ding, ding, ding! And here we go. Why do we need to amend the Constitution to prohibit same-sex marriages? Because homosexuality is a “perversion”. You know what? I think guns that can be used to kill 20 first graders are a perversion. I think CEOs earning more than 400 times their average worker is a perversion. I think billionaires being able to buy politicians is a perversion. I think children going hungry or living without healthcare is a perversion. I think global energy companies polluting massive areas of our land, sea, and sky is a perversion. So I’m sure that Rev. Johnson will support constitutional amendments to correct those perversions, right? Or is it just gays that he can’t tolerate?
Well, maybe his view of what is perversion is based on his Biblical view; after all the Bible says that male homosexuality is an abomination (and yes, it appears to be limited to men). But you know what? That same sentence from the Bible also said that homosexuals should be put to death. So why isn’t Rev. Johnson advocating the death penalty for gay Hoosiers. For that matter, why isn’t he advocating for the abolition of Red Lobster, football, cotton-polyester blends, and barbershops? After all, those and many other things are also identified as abominations in the Bible. But Rev. Johnson is only worried about gays. I wonder why…
Gay rights groups and others who oppose the marriage amendment make their case in terms of freedom and equality. They cast it as a matter of civil rights, with immediate implications for the couples who want the right to wed.
If the fight against anti-miscegenation laws was a civil rights fight, then why isn’t the fight for marriage equality also a civil rights fight? If the fight for racial equality was a civil rights fight, then why isn’t the fight for equality with regard to sexual orientation a civil rights fight?
But the groups who want to preserve traditional marriage — those seeking passage of marriage amendment that would essentially ban gay marriages — say this issue is much bigger than individual desires. They say it goes to the underpinnings of human society.
“In my opinion,” says Johnson, “what we're tinkering with here is the entire cornerstone and building block of Western civilization, which is no small matter.”
Wait, what? The “entire cornerstone and building block of Western civilization” is marriage that is only between a man and a woman? Really? Western civilization isn’t built on notions of freedom and equality? On governing principles like democracy or the marketplace of ideas? Not even on capitalism? Perhaps Rev. Johnson needs to do a bit of homework on when governments became involved in the institution of marriage. I think that he’ll be surprised to discover that Western civilization predates government involvement in marriage (well, other than arranged marriages designed to tie rival kingdoms together).
I’d also point out that a major underpinning of Rev. Johnson’s likely view of the cornerstone of Western civilization comes from the Bible and Jesus, who, unless we believe Dan Brown, wasn’t married (and nor, for that matter, were many of the Apostles).
Rev. Johnson wants us to put aside “individual desires” for the sake of human society; of course, he didn’t have to put aside his individual desires. Nope. Only those who have individual desires contrary to those espoused under Rev. Johnson’s Biblical view have to set aside their individual desires. Once again, those on one side of the fence don’t get their own individual desires, while those on the other side do.
Johnson isn't alone in his view that preserving traditional marriage is crucial to the health of civil society.
“I don't think there’s any logical stopping point once you go beyond the time-tested boundaries of one man and one woman,” said Micah Clark, executive director of the American Family Association of Indiana.
If two men are allowed to marry, Clark asks, then why not three? Why not four?
See what I mean? We’ve jumped back onto the slippery slope to discuss polygamy, even though neither polygamy nor the acceptance of same-sex marriage are the issues facing Indiana right now. I could discuss the differences between same-sex marriage and polygamy, but that’s not really the point (nor is this the time).
“Wherever you draw the line, that’s the next boundary that people will go after,” Clark said. “There are people out there who are very open in saying that we shouldn’t have marriage or family at all.”
Yes. And there are also people saying that the Earth is flat, that HIV doesn’t cause AIDS, or that we should abolish the military and the police. There are people out there that will say anything. But the fear of what some might advocate for in the future is not a reason to adopt discriminatory constitutional amendments now. You know, I bet back in the ’60s when many states prohibited blacks and whites from marrying, some people argued that the next step would be same-sex marriage. Thus, to follow Clark’s logic, we should never have set foot on the slippery slope of banning anti-miscegenation laws, right? We probably shouldn’t have allowed African Americans or women to share some form of political equality because who knows what will follow from that? Some African Americans advocate reparations for slavery. Maybe Muslims will demand the right to practice their religion or Latinos will demand fair immigration policies. Or (gasp), homosexuals will want the promise of equal treatment under the law to apply to them.
Same-sex marriage is a more radical altering of the family structure, said Curt Smith, president of the Indiana Family Institute, than China's policy of limiting families to one child, which created an imbalance of men to women. Same-sex marriages will mean lower birthrates and fewer children raised by both of their natural parents. The result, he says, will be problems that mirror those of broken homes.
The sheer … um … stupidity of this argument is really hard to wrap a brain around. First, let’s take care of the easy part. Smith is comparing allowing loving couples to marry to the Chinese “one child” policy that led to sex-selective abortions and an imbalance in the ratio of men to women. Hmm. I guess I don’t quite see how allowing people who love one another to marry has any basis for comparison whatsoever to a policy limiting the number of children that a married couple can have. None. Zero. Zilch. Nada. But, once again, you can see quite clearly the lengths to which same-sex marriage opponents and those who advocate for HJR-3 must go to try to make some kind of argument to support their position. If the best argument that you can make in favor of amending the Constitution is that same-sex marriage is like China’s one child policy, then aren’t you really admitting that you’ve already lost the debate and have no real intellectually honest arguments?
But moving on to the other part of Smith’s argument is where humor comes into play. Smith claims that “[s]ame-sex marriages will mean lower birthrates and fewer children raised by both of their natural parents” and then, to add some insult to his idiocy, claims that the result will “mirror those of broken homes”. Ok. Deep breaths. Deep breaths.
So tell me why allowing two men who love each other to marry (instead of just “living in sin”) will cause birthrates to go down? (Damn! I forgot. The issue isn’t allowing same-sex marriage; the issue is prohibiting that which the law already prohibits. I got sucked into their argument. Growl.) Are gay men currently having babies but if the Constitution isn’t amended, they’ll stop? And I’ve read about plenty of lesbians who do have babies. Are we to believe that if they can get married to one another, they’ll stop having those babies? Um, why? Does Smith have empirical evidence from any of the states that presently allow same-sex marriage to show that birth rates have declined (and that such decline can be fairly attributable to same-sex marriages)? And why would allowing a same-sex marriage have any impact on whether children will be raised by their natural parents? Will the Child Catcher come around and demand that children be ripped from their homes and given to gay couples. Seems farfetched. If we presume that homosexuals aren’t procreating (which seems to be one of the more common arguments against same-sex marriage), then how will marriage impact the procreation in “traditional” families? If the concern is that some children might be raised by a parent in a same-sex relationship, isn’t that child still being raised by a natural parent? No, not by both natural parents, but then how many children are raised by both natural parents when one of them is gay anyway?
Oh, and “broken homes”. Right. Almost forgot about that. Remind me again about the percentage of American children living in single-parent households (so-called “broken homes”). Forget about the number of children being raised in a same-sex relationship; how many children are being raised by both natural parents period? Apparently, to marriage equality opponents, ’tis better that children live in a single-parent family (or maybe in a foster care facility) than with a married same-sex couple. Does that make any sense? But at the same time that they decry broken homes, they advocate for a policy that will restrict the number of children that can live in a two-parent family. Are you ready to take the leap and compare a home with two loving parents to a “broken family” just because the parents happen to be of the same gender? Moreover, note the conceit that all opposite sex, two parent families are, in essence, good families. Yet we know that certainly isn’t the truth.
Let’s also note that just because the parents aren’t married, doesn’t mean that they’re not living together and raising the children as a family. Marriage equality opponents may not view that as a family, but I think more and more Americans are coming to view the word “family” as being inclusive of all sorts of relationships. So just because “marriage” is prohibited, doesn’t mean that children won’t be raised in loving, stable, two-parent households. And I for one think that environment is better than a single-parent household or a “traditional” family in which the children aren’t shown the love and care that they deserve. Which is worse: Two good, same-sex parents or two bad heterosexual parents. Isn’t that really the consideration that we should be using?
Traditional marriage between one man and one woman, Smith said, is elemental to healthy families, and one of the building blocks of a strong nation. It is an ideal, he says, held up since the Code of Hammurabi and the ancient Greeks, one “recognized across all times and centuries.”
I’ve already touched on some of these points, but let’s look at a few others. First, Smith talks about the Code of Hammurabi and the ancient Greeks. In all honesty, I have no idea what the Code of Hammurabi said about same-sex marriage (nor do I care); nor do I know what the ancient Greeks considered “traditional marriage” to be, but I do know that homosexuality was relatively common in ancient Greece, including relationships between older men and younger boys. So, I’m not really sure that’s the comparison that Smith wants to make. I also find it interesting that Smith looks to the Code of Hammurabi and ancient Greece and not to the Bible. Hmm. Could that be because “traditional marriage” wasn’t so traditional in the Bible? Remind me again about how many wives Jacob had (or the fact that he had to “pay” for them with seven years of labor). Traditional marriage, huh? Or then there is King Solomon and his 700 wives and 300 concubines. Neat deal if you can get away with it (I suspect my wife would frown…), but not exactly the sort of “traditional marriage” that Smith says has been “recognized across all times and centuries”.
Note further than Smith isn’t just talking about Western civilization. No. He speaks of the Code of Hammurabi (which came from Babylon [i.e., Iraq]) and “all times and centuries”. Hmm. Unless I’m mistaken, polygamy was practiced in the United States by Mormons until late in the 19th Century. Polygamy remains common in numerous other societies across the globe. Many societies do recognize “traditional marriage” of one man and one … very, young girl who has no consent to her marriage. But hey, at least there’s none of that icky gay sex. And I don’t think Smith would think much of Native American “two spirits” or “berdaches”. In other words, “traditional marriage” (if by that we mean a man and a woman and leave out things like consent, adulthood, and love, and focus solely on the who part of the equation) may be the most common and most widely accepted form of marriage, but it certainly isn’t the sole building block.
And note that Smith sort of cavalierly tells us that “traditional marriage” is “elemental” to healthy families. Really? Why? It seems to me that, as I said before, a loving family is more important than a traditional family. I’d suggest that money is probably more elemental to a healthy family that “traditional marriage”. I’m sure that there are a lot of single-parent families (not to mention same-sex families) that are far healthier that a many “traditional families”. Moreover Smith makes the leap from healthy families to a “strong nation”. Again, why does a traditional family make a nation stronger? Do traditional families make better soldiers? Pay more taxes? What? What is it about a traditional family, without regard for the nature of the people in that family and whether they love one another or make good parents, that makes them the building blocks of a strong nation? Just because they can procreate? Seems like you need more than lots and lots of babies to be strong. There are a lot of countries with lots of “traditional marriages” and lots of babies that aren’t really “strong nations”. So all I can really conclude is that Smith is simply trying to scare those who listen to him and who don’t think deeply about these issues.
What the definition of marriage would become, if the current one is expanded, isn't clear to Johnson. During testimony Monday before the House Judiciary Committee, he said it could lead to “sexual anarchy,” a characterization that drew several scoffs.
“When a river has no boundaries, it is actually what we call a swamp,” Johnson said. “And there are all kinds of nasty critters and scary critters that are roaming around swamps.”
Nasty, scary critters and swamps? What the… And “sexual anarchy”? Um… I hate to tell this to Rev. Johnson, but I’d say that people have been experimenting with sex in all sorts of interesting ways since … well … since the first human dude and Neanderthal babe tried to make a little interspecies boogaloo. I wonder if Rev. Johnson has ever heard of the Kama Sutra or ever heard about some of the excesses of the hippie movement. It seems that human sexuality has been in a state of anarchy since the beginning of time while people like Rev. Johnson have spent their time trying to make people ashamed of their own bodies and sexual desires. Anybody want to bet on whether Rev. Johnson approves of honest sex education in school or prefers an “abstinence only” curriculum.
Also, maybe I’m reading his comment incorrectly, but it sure seemed to me as if Rev. Johnson implied that homosexuals are “nasty critters and scary critters”. So you have to query whether his real goal is preventing same-sex marriages or if homosexuality, in general, is the target of his righteous indigestion (and yes, I know that I wrote “indigestion” and not “indignation”; I was having a little fun, people…).
Faith-based beliefs
Fundamental to concerns about the direction of the family, for many supporters of the amendment, is a faith-based belief that marriage was created by God, that it was intended to be between one man and one woman, that it is an ideal reinforced by human anatomy and that the presence of both masculine and feminine role models in a home is vital to the healthy development of children.
I’ll come back to the human anatomy and masculine and feminine role models later. But this paragraph really identifies the core reasoning of the proponents of HJR-3 and opponents of marriage equality: G-d. They believe that “marriage was created by God" and was “intended to be between one man and one woman”. Again, remember all of the instances in which that wasn’t true in the Bible. But even that isn’t what’s really important here. No. The important thing is that neither the United States nor the State of Indiana are theocracies. We don’t make laws based on what G-d created or “intended” (and just how do they know what G-d intended?). If we made laws to conform to the apparently narrow understanding of Biblical “intent”, then wouldn’t we still be stoning children who talk back to their parents? Wouldn’t divorce be illegal? Wouldn’t we still have slaves? I mean, just look at the Ten Commandments (the tablets, not the movie!); depending on how you count, only three of those commandments are laws. And why are opponents of same-sex marriage so focused on the “rules” about homosexuality and so willing to ignore the enormous number of other rules, commandments, obligations, and prohibitions? Does Rev. Johnson allow women to speak in his church? Because one of the Apostles said that was a big “no no”.
Anyway, the point here is that Christians, Orthodox Jews, Muslims, Mormons, and any other people of faith are and will remain free to think homosexuality and same-sex marriage is wrong, just as they can think that interfaith marriages are wrong, that interracial marriages are wrong, that evolution is wrong, that abortion is wrong, or that Duck Dynasty is a good TV show. They can believe that. And you know what? Nobody will tell them that they can’t believe it (though we may tell them why we think they’re wrong). More importantly, nobody will make them get divorced and have a gay wedding (though it would make a great TV show for Bravo), just as nobody is forcing them to marry outside their faith or their race, just as nobody is forcing them to have an abortion. But under our system of government, the religious views of some, even if a majority, don’t dictate how everyone else must live. If they did, how do we explain even permitting other religions to exist in America, let alone be freely practiced? Is that what G-d intended? Based on that whole “no other gods” thing, I kinda doubt it…
We are a secular nation. Sure, some of the Founding Fathers were influenced by Biblical principals; others fought against the Bible (or even tried to remove its supernatural elements). But they crafted a constitutional framework that separates church and state, that protects the minority from the so-called “tyranny of the majority”, that operates on the basis of laws created by humans for humans today, not on the basis of un-provable intentions set down in writing thousands of years ago in a very different time and place and to address, most likely, very different concerns and problems.
OK. I could go on, but… OK. Moving on.
“We have to have that true masculine and that true feminine in harmony, and that can only really be played out when a man and a woman are in that marriage relationship,” said Greg Wallace, executive director of Hope & New Life Ministries, which advises churches on how to minister to people with same-sex attractions.
I mentioned that I would come back to the issue masculine and feminine role models. Sorry, but I don’t see a requirement that a marriage include masculine and feminine role models now. Masculine women can marry; so can effeminate men. For that matter, “flaming” homosexual men can marry women and “butch” lesbians can marry men, but I don’t think that the masculine and feminine role models in those sorts of family environments are what Wallace and other opponents of same-sex marriage have in mind. It seems to me that this argument is really focusing on the insecurities of those making the argument. Or, it may be setting an idealistic hope. But we don’t base decisions on who can form a family based on someone else’s ideals and hopes. We don’t check testosterone and estrogen before we allow marriages to be sure that we have the proper amounts of masculinity or femininity. When we issue a marriage license do we need to check for fertility? For that matter, we don’t test prospective brides and grooms to be sure that they’ll make good parents, let alone role models, let alone masculine and feminine role models. So to use this as a reason to amend the Constitution to prohibit same-sex marriages that are already prohibited by statute seems more than a bit farfetched.
Wallace said he lived what he described as a gay "lifestyle" for eight years before deciding to renew his commitment to his Christian faith. After doing so, he came to believe God's perfect design for marriage was one between a man and a woman. For the past 26 years, he's been married to a woman he says he has grown closer to over time.
Oh, I see. He lived a “gay ‘lifestyle’” before “renewing his commitment to his Christian faith”. Of course this ignores scientific evidence that homosexuality is not a choice (yeah, I know, people will argue about that, just as they’ll argue that global warming is a hoax, evolution is “theory”, President Obama is a Kenyan Muslim, and Xenu brought humans to earth on his galactic DC-8). Look, I’m happy that Wallace is happy. That’s great. But it doesn’t really explain why other people shouldn’t also be happy, does it? I get mine but you can’t have yours because G-d! Yeah, that’s a winning argument. And don’t forget that many homosexuals believe that they are living with their own commitment to their Christian faith (or to some other faith); but apparently Wallace thinks that he gets to decide which sort of commitment to faith is the correct version. Fences again.
Wallace acknowledges the church has done poorly in its outreach to the gay community, and he is less certain than others about the implications for society if same-sex marriage comes to pass. But he is convinced that the vast majority of gay people are not interested in the right to marry. They just want to be left alone. Pushing for marriage rights, he said, are a vocal minority of activists.
The “church has done poorly in its outreach to the gay community”? Gee. Ya think? “Burn in Hell” does seem like a poor outreach message. “God hates fags” isn’t a terribly effective message either, I don’t think. Nor does “you don’t have the right to marry the person that you love … but I do”. And I’m curious to know where Wallace comes up with his notion that the “vast majority of gay people are not interested in the right to marry.” Well, then. Even assuming that was true (and if it was, why are there so many people pushing so hard in so many places?), why should that be used as the basis for preventing those who do want to marry from doing so? You know, last time I checked, it seemed that fewer heterosexuals were marrying (with many choosing to stay single and others deciding to cohabitate but not marry). Just how many hipsters need to decide that they don’t want to get married before we should prohibit heterosexual marriage?
I’d also suggest that during the Civil Rights era, it was a “vocal minority of activists” who were marching for racial equality. Most African Americans wanted equality, but they also didn’t want to get beaten by the police or killed by men in white hoods. The same is likely true of the gay community today. Many want to be left alone; many others are afraid for their friends and family to even know that they’re gay. But that shouldn’t be seen as opposition to equality.
Like Johnson and others, Wallace shares a concern frequently voiced by traditionalists — that allowing same-sex marriage could have repercussions with regard to free speech. Churches and other congregations with long-held beliefs about the sinfulness of gay behavior eventually could face lawsuits, they fear, even hate-crime charges, if they stick to the doctrine they've been teaching for centuries.
"I think the religious liberties become front and center if you have same-sex marriage, not in an alarmist way, but it is just a logical progression," said Smith, of the Indiana Family Institute.
This argument angers me more than just about any others. No. Permitting same-sex marriage will not have repercussions regarding free speech or infringe on the religious liberties of those who oppose same-sex marriage. And certainly a decision not to amend the Constitution (remember, the issue is amending the Constitution, not adopting same-sex marriages) won’t impact free speech or liberty rights. I looked at the “religious freedom” component of this argument a few months ago in my post Using the Claim of “Religious Freedom” as a Weapon Without Considering What it Really Means.
When HJR-3 proponents and marriage equality opponents veer into discussion of hate crimes … well, they’re simply lying in order to scare people. For one thing, have you ever heard of someone being arrested, let alone being charged with a hate crime, simply for saying that they don’t agree with ______ [insert your favorite issue]? If you stand on a street corner tomorrow and say that you hate Muslims and think that they should be sent back to Saudi Arabia, will you be arrested? If you stand on that street corner and say that you don’t think whites and blacks should be allowed to marry one another, will you be charged with a hate crime? If you protest a military funeral holding a sign that says “God Hates Fags” will you be arrested and charged with a hate crime? Fred Phelps and his Westboro Baptist Church do it daily, and they’re not in jail. And if you stand on that street corner or on your pulpit, pound your fist or your Bible, and shout at the top of your lungs that gays are going to Hell or that they’re an abomination you still haven’t committed a hate crime and whether or not same-sex marriages are permitted won’t change that!
You see, what people who make this argument conveniently forget to mention is that it isn’t a hate crime to speak. Nope. If it were, huge swaths of the country would be in jail. (Just think of some of the rhetoric directed toward President Obama…) No. In order to rise to the level of a hate crime, the speech must be coupled with an otherwise already illegal act. Thus, if you walk up to an African American man on the street and call him the N-word, you’ve proven yourself to be a racist asshole, but you haven’t committed a hate crime. But if you say the N-word as you punch him? Now, you may have committed a hate crime. Just this weekend, I read a (semi-)humorous take on this issue by Fred Clark on the Slacktivist blog: Are Indiana pastors routinely committing assault on Sundays? Maybe we need to ask that of Rev. Johnson.
Others warn that public schools will begin teaching children that same-sex marriage is acceptable, even if that contradicts the religious beliefs of their parents. There are concerns that everyone from wedding photographers to cake makers and wedding venues would face discrimination lawsuits if business owners — based on their religious beliefs — refused to accommodate same-sex couples.
“I don't think these are far-fetched,” Smith said. “I don't think they are alarmist either.”
This sort of combines two commonly-heard arguments, each of which could easily be the subject of a much longer analysis. So I’ll try to be brief. First, what do we want schools to teach our children? That some children live in “non-families” and that their faux parents are going to Hell? Don’t we already teach children things that may conflict with religious beliefs? (And of course, that explains why so many Christians don’t want schools to teach evolution or global warming or safe sex or anything about other religions or this book or that book and so on and so forth.) But you know what? If you want your kids to only learn what the Bible teaches, then send those kids to a religious school or keep them at home. For my part, I want our schools to teach children tolerance and respect and love. I want our children to learn that families, just like people, come in all sorts of flavors and varieties. The religious beliefs of same-sex marriage opponents are also likely to be “offended” if schools teach that it’s OK for some children to be Jewish, Muslim, Buddhist, Hindu, Mormon, or atheist. Yet we don’t expect our schools to teach children that only one sort of religious view is “acceptable”. Nope. We expect our schools to mold educated children who can thrive in our society; we don’t expect our schools to teach bigotry or to base what is right and wrong on the religious views of just one segment of the population.
To be certain, the faith community in Indiana — and the nation — is far from monolithic in its views of the marriage amendment and same-sex marriage in general. Some denominations now allow gay clergy or offer blessings of same-sex unions. About 300 Hoosier faith leaders signed a letter opposing the amendment. Some surveys show that even among evangelical Christians — where support for the marriage amendment is strongest — there is a softening of views towards same-sex marriage among younger believers.
People of different faith traditions disagree on marriage-related issues. However, each of us who signs this letter respects the right of religious groups to decide whether or not to sanction marriage or other unions of same-gender couples. The Indiana Bill of Rights guarantees the free exercise and enjoyment of religious opinions, and prevents the giving of a legal preference to any creed. Preferring and codifying one particular religious view of marriage in the Indiana Constitution flies in the face of both of these guarantees.
The drafters of the Indiana Constitution included six provisions in Bill of Rights that seek, in various ways, to ensure that the government does not interfere with, or direct, religious beliefs or practices. We ask you to respect this grant of religious freedom and allow Indiana’s various faith communities to continue to discern their individual paths with respect to same-gender marriage or other same-gender unions.
The following faith communities, all found within Indiana, have publicly affirmed and include same sex marriages in their polity: The Alliance of Baptists, Metropolitan Community Churches, United Church of Christ, Community of Christ, Reconstructionist, Conservative, and Reform Judaism, Unitarian Universalist, Unity, Native Americans along with independent churches and individual faith communities from the Evangelical Lutheran Church in America, Society of Friends, Christian Church Disciples of Christ , Buddhist , Hindu and Muslims. Episcopal and Presbyterian churches include blessings of holy unions.
And query this: Wasn’t one reason for the separation of church and state precisely so that the state and church didn’t become entangled with one another especially as various churches worked (or fought) through their differences? Some churches and faiths believe homosexuality is evil, evil, evil. Others, like those represented by the signatories the aforementioned letter, seem much more welcoming. Is our state’s law, let alone Constitution, the place for religions to fight over these views? It is worth noting how those who cite the Bible and G-d as the basis for their opposition to same-sex marriage (and support for HJR-3) do so on the presumption that only they know what G-d really intended; those faith traditions with a different viewpoint must, by definition, be wrong. Of course, if there is that much room to argue about Biblical intent, then perhaps it really isn’t that clear. If we look at the history of Europe over the last thousand years or so and the numerous wars fought and massacres committed in the name of G-d, then perhaps that should serve as a warning to us today about trying to use one view of Biblical intent as a sword against those with a different understanding.
Scriptural law
But, clearly, the core of the opposition to same sex marriage — and the motor propelling the push for defining marriage in the state constitution — is an argument based on traditional readings of Scripture.
The first chapter of Genesis, said Dean Bouzeos, a pastor who is executive director of The Gathering Place in Greenwood, explains how God created man in his own image "male and female." Later references in Genesis identify gender roles. In other texts he cites, the city of Sodom was destroyed because of depravity and homosexuality.
So, because some people believe that G-d destroyed Sodom because of homosexuality, then we shouldn’t let a gay Hindu couple marry? (And, while I don’t want to get into a debate about theology and Biblical “history”, it’s worth noting that not everyone who believes in the Biblical stories agrees that Sodom was destroyed because of homosexuality; for example according to Ezekiel 16:49-50: “Now this was the sin of your sister Sodom: She and her daughters were arrogant, overfed and unconcerned; they did not help the poor and needy.They were haughty and did detestable things before me. Therefore I did away with them as you have seen.” Hmm. Nothing about icky gay sex there.) Because one creation story says that G-d created man in his own image, we shouldn’t let Native Americans, who have a completely different creation story, follow the dictates of their own hearts and traditions? And what about those who don’t believe in any deity at all? Because you believe in a deity means that I must live my life in conformance with your beliefs and my own ethics, morals, and worldview are of no value?
And who cares how Genesis identifies gender roles. First, note how Christians who oppose marriage equality are quick to point to the Old Testament when it serves their purposes (gender roles, gay male sex is an abomination, and so forth) while completely ignoring the inconvenient parts (slavery, prohibitions on … well … lots and lots of things). Second, when we talk about “gender roles” do we mean that whole notion that women are supposed to be subservient to men, that women from a conquered nation (think Afghanistan or Iraq) are to be taken as slaves, that men can have hundreds of concubines to go with their hundreds of wives, that women have no part to play in the creation of Christian theology (how many of the Apostles were women?), that menstruating women are unclean and cannot be touched until they take a ritual bath, and so forth? Sorry, but I think society in general has moved beyond many of those bronze-age gender roles.
In the Christian gospel of Matthew, Bouzeos notes, Jesus cites Hebrew scriptures and says a man and a woman shall come together in marriage. The Apostle Paul wrote in his epistles about a litany of sins that bring God's judgment, including homosexual acts.
“I think,” Bouzeos said, “there is pretty clear evidence in Scripture.”
Look, I’m not a Biblical scholar and I’m certainly no expert on the New Testament or Christian Theology. But, as I’ve said repeatedly, the Bible and pronouncements made 2,000 or more years ago are not the basis for our modern laws. Remind me again what Jesus said about sexting? For that matter, remind me again what Jesus, not an Apostle, but Jesus himself, said about homosexuality. The answer is nothing. Now I know that this next point will be offensive to some, but that doesn’t make it less important: What supporters of HJR-3 and opponents to same-sex marriage want us to do is to take our cues on the issue of who can be married from the sayings of a man who never married and who associated with a group of men, most of whom never married, and whose writings have been the subject of a church structure that in its most dominant form, is comprised solely of men who have never married. But people who believe in those writings get to tell others, including those who follow different faiths, who should be allowed to marry?
Such certainty is not limited to evangelical Christians. Rabbi Yisrael Gettinger, of Congregation B’nai Torah in Indianapolis, said his Orthodox Jewish tradition is equally clear that homosexual activity is, biblically speaking, “outlawed.”
“One cannot be more certain of something being inappropriate if it’s called an abomination in the Bible,” Gettinger said. “Those are not my words. Those are the Bible’s words. Those are God’s words.”
I don’t like ad hominem arguments. That being said, sometimes it is worth knowing a little bit about the speaker. Rabbi Gettinger is the rabbi at Congregation B’nai Torah, an Orthodox Jewish synagogue in Indianapolis. If we could stretch rabbis along a spectrum from most conservative to most liberal, Rabbi Gettinger would be … well, let’s just say that he wouldn’t be on the liberal side of that spectrum. But that’s just fine. He and his congregants have a religious view and they are certainly allowed to express that view. But for the casual reader of the article, it may seem as if the viewpoint expressed by Rabbi Gettinger is the Jewish view on the subject. It is not. First, the Orthodox community of which Rabbi Gettinger is a part makes up only about 22% of the Jewish population nationally, while in Indiana the Orthodox community probably accounts for less than 10% of the Jewish population. Moreover, the article doesn’t mention that the two largest branches of Judaism (both nationally and in Indiana), the Reform and Conservative movements, have endorsed same-sex marriage. So too has the Reconstructionist movement which is very strong here in Central Indiana (if smaller nationally). And note that the clerical letter mentioned above was signed by Rabbi Michael Friedland, Sinai Temple, South Bend, Rabbi Stanley Halpern, Temple Israel, Gary Congregation Beth Shalom, Indianapolis, Rabbi Bruce J. Pfeffer, Chaplain, Bureau of Jewish Education, Indianapolis, Rabbi Dennis C. Sasso, Congregation Beth-El Zedeck, Indianapolis, Rabbi Sandy E. Sasso, Senior Rabbi, Congregation Beth-El Zedeck, Indianapolis, Rabbi Benjamin Sendrow, Congregation Shaarey Tefilla, Carmel, Rabbi Susan L. Shifron, Helene G. Simon Hillel Center, Bloomington, Rabbi Nadia Siritsky, Indianapolis Hebrew Congregation, Rabbi Aaron Spiegel, Butler University Hillel, Indianapolis, Rabbi Heidi F. Waldmann, IU Health Staff Chaplain, Carmel, Rabbi Mira B. Wasserman, Congregation Beth Shalom, Bloomington, Rabbi Paula Winnig, Executive Director of Bureau of Jewish Education, Indianapolis, and Cantor Janice Roger, Indianapolis Hebrew Congregation. That list includes, I believe, the vast majority of congregational rabbis in Indiana. So Rabbi Gettinger’s viewpoint may represent his congregants and the Orthodox movement, but it is not representative of Jews generally or of Hoosier Jews in particular.
However, before I continue, I do want to make one further point about Rabbi Gettinger to demonstrate just how concerned he is with the views of other Jews or the larger Jewish population in general. Several years ago, he was invited by Republicans to address the Indiana General Assembly on the issue of abortion. It is my understanding that during his testimony, he told the General Assembly that any contrary views that had previously been expressed by other rabbis (most likely he was referring to Rabbi Dennis Sasso who had previously testified on the issue of when life begins) were lies. Not “different” or “controversial” or “subject to differing interpretations by different branches of Judaism”. Nope. Views that weren’t in line with his were lies. (Again, I was not present for Rabbi Gettinger’s testimony, but that is how it has been characterized to me by several people.) I do know that representatives of Rabbi Gettinger’s synagogue tried to tell the rest of the Indianapolis Jewish community that it was only the Orthodox Jewish community that understood “Torah truth” and, thus, should have a veto over views expressed by the remainder of the organized Jewish community in Indianapolis. Thus, perhaps Rabbi Gettinger’s views on same-sex marriage should be taken with a tiny grain of salt.
Some contend that faith should not be the basis for deciding public policy, but pastors like Johnson say everyone in this debate brings a worldview to the table — be they believers or not.
“At the end of the day,” Johnson said, “somebody's worldview is going to prevail.”
Yes, somebody’s worldview is going to prevail. We all understand that. But we have to remember that worldview is not necessarily the same as religion. More importantly, and more fundamentally, we have to remember that one of the most important things that our system of government was designed to do was to insure that the worldview of the majority, even a vast majority, cannot trample the rights of the minority. The vast majority of Hoosiers are Christians; but they can’t outlaw Islam or prevent Muslims from practicing their faith. The vast majority of Hoosiers are white; but they can’t write laws specifically designed to discriminate against people of color. Furthermore, remember that what we’re talking about here is the law and the Constitution and a prohibition. We’re not telling “believers” that they must have a gay wedding, attend a gay wedding, or even approve of gay weddings; we’re just saying that they shouldn’t be able to tell others that they can’t get married.
Yet even among the most steadfast supporters for traditional marriage, there is an acknowledgment that marriage has been weakened by other things, such as high divorce rates and people who choose to live together out of wedlock. There is also a recognition that same-sex relationships are a fact of life in modern America.
The key is whether the state follows the lead of gay activists and recognizes those relationships as marriage.
“People can live however they want. They can do whatever they want,” said Clark, with the American Family Association. “But, as a matter of public policy, marriage is the union of a man and a woman. If marriage becomes anything any group desires or wants it to be, it loses its importance. If marriage means anything, it means nothing.”
Um, what? That’s another one of those cute little flashes of rhetoric that means nothing. How about this: Right now, married Hoosiers can own property as “tenants by the entireties”. That is a special way of owning property open only to married couples. Sure, a gay couple could own property together, but not as tenants by the entireties. That is but one example (out of literally hundreds) of how marriage means something under the law. The question is simply who should be allowed to marry. I’d also be curious to know if Clark has empirical evidence from states like Massachusetts and Iowa, New York or California, that show that marriage “means nothing”. And of course, allowing same-sex couples to marry doesn’t mean “marriage becomes anything any group desires”. Just fear-mongering again. All it means is that marriage is a union between two people, hopefully in love.
Gay couples, said Smith, with the Family Institute, are free to live as they see fit.
After reading that sentence the first time, I nearly fell out of my chair laughing. Really? Do we really think that Smith and the Indiana Family Institute believe that gay couples are free to live as they see fit? I could probably write a whole article on efforts that groups like this have made to try to criminalize homosexual conduct, prevent gay couples from adopting, oppose sexual orientation and gender identity in human rights ordinances, and so forth.
But there's one thing they shouldn’t be allowed to do: “They don’t get to redefine marriage for the rest of us.”
Another one of those red herrings. Nobody is looking to “redefine” marriage for everyone else. If a particular religion wants to limit marriage to heterosexual couples, to heterosexual couples of the same faith, to heterosexual couples of the same faith who agreed to be bound by some sort of covenant, or to heterosexual couples of the same faith who agree to be bound by a covenant and to be fruitful and multiply … well that’s just fine. But those people shouldn’t be able to tell others that they can’t enter into a relationship that is sanctioned, not just by houses of worship, but by the government.
To Johnson, who with his wife, Marion, now leads marriage encounter weekends for couples, and whose parents have been nurturing marriages for decades, the union of a man and a woman in marriage is something precious that needs protecting.
I have yet to hear a good explanation for what people mean when they say “protect marriage”. If the Constitutional amendment is not passed, will Rev. Johnson and Marion get divorced? If Indiana were to permit same-sex marriage, would Rev. Johnson and Marion love each other less or feel less committed to each other? Would Rev. Johnson start frequenting a gay bar wearing chaps or his wife start watching Ellen and listening to Melissa Etheridge songs? If so, then I think that they have problems other than marriage equality issues. But if not, then I still don’t understand what it is that needs protecting.
“God created marriage. God established the principles for marriage, and if we follow God’s wisdom, Johnson says, “we enjoy the benefits of marriage.”
Rev. Johnson may believe that G-d created marriage (but don’t forget what Biblical marriages really looked like), but again, not all faiths have the same belief or understanding. As to the “benefits of marriage”, if he’s talking about religious or spiritual benefits, then I guess that’s for him to decide. But what about the “benefits of marriage” in our tax codes, in our property laws, in hospital visitation rights, and so forth. Why shouldn’t the “benefits of marriage” be available to homosexual couples. (And before you say, “Gee, gay couples can write legal documents…”, let me ask you why those couples should have to spend money to have an attorney draft documents to accomplish what a heterosexual married couple is given by operation of law? I’d also remind you that, as with the example of tenants by the entireties mentioned above, no legal document can accomplish some of the benefits provided by the law.)
A ban or a definition?
Is the HJR-3 amendment a “ban” on same-sex marriage or a “definition” of marriage?
The Rev. Ron Johnson Jr., pastor of Living Stones Church in Crown Point, objects to the notion that this debate is about a marriage ban, as groups, including many gay activists who seek the defeat of the amendment, have called it. The referendum would ask voters whether they agree with the statement: “Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana...” As Johnson puts it: “Nobody is trying to ban marriage. We are trying to protect marriage from a redefinition of marriage. Marriage is already in existence. I would say to those people that you already have the freedom to live as you are choosing to live. However, you do not have the freedom to redefine marriage for the rest of us.”
Hard to believe he really wants to play semantics. And did you note that when Rev. Johnson talks about what the referendum on HJR-3 would ask Hoosiers, he conveniently omits the second sentence: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” Hmm. I wonder why he left that out if the goal of HJR-3 is supposedly not to ban something like civil unions.
Finally, here is the video of Rev. Johnson that accompanied the story on The Indianapolis Star website (unfortunately, I couldn’t find a transcript and I don’t have the time to generate one):
The first thing that Rev. Johnson discusses is social science data that he claims shows that children “thrive” in homes with a mother and a father. First, I’m not sure that is a fair characterization of the social science data; there is a oft-quoted study from Texas from a few years ago but, to the best of my recollection, that study only compared two-parent households to single-parent households, it didn’t compare same-sex parents to opposite-sex parents in a controlled study.
And even if that is what the social science says, Rev. Johnson misses the point in two ways: First, presuming that opposite sex parents are better for children doesn’t tell us that same-sex parents are bad for children or are worse for children than single-parent families. Second, just because one family situation is “better” or “optimal” doesn’t mean we prohibit marriages (and note that not all marriages involve children…) if the resulting family structure might be suboptimal for children. We permit alcoholics to marry. We permit people who’ve been convicted of crimes, including spousal or child abuse, to marry. We permit people living in poverty to marry. We even allow some minors to marry if their parents consent. And we “allow” people to have children even if the environment into which those children are born is suboptimal. We don’t stop convicted abusers or felons from having children, we don’t stop alcoholics or those with multiple DUIs from having children, and we don’t stop the poor from having children. Ah, but gays… Oh, that sort of “suboptimal” environment is just too … um … icky?
Rev. Johnson also says that it takes a father and a mother to “produce” a child. I’d actually quibble semantics a bit. It takes a sperm and an egg. Just because a woman produces an egg, doesn’t make her a mother; just because a man ejaculated some sperm doesn’t make him a father. I’d argue that being a father or a mother involves love, caring, compassion, and so forth. And I would argue that while it might take a sperm and an egg to “produce” a child, it takes loving, caring parents (or a loving and caring parent) to raise a child.
Then Rev. Johnson makes the bizarre claim that “emotional bonds are not as strong as ‘covenant union’”. So-called “covenant marriage” is something that the religious right has been pushing for years. In essence, it is a sort of “super-marriage” from which it is much more difficult to obtain a divorce (along with other elements that I frankly don’t understand). But note the switch from the argument of why he wants a ban on same-sex marriage to promoting covenant marriage. Rev. Johnson is concerned about “emotional bonds” changing. But think about what he’s really saying: Marriage isn’t about love and once you say “I do” you’re stuck, even if you fall out of love. Yet, at the same time that he’s saying that, he’s also saying that people who do love one another shouldn’t be allowed to marry if Rev. Johnson and others like him disapprove.
He also makes a wonderful claim that marriage is about being committed to somebody for the rest of your life. Isn’t that what homosexual couples want to be able to do? He goes on to talk about profound changes that marriage makes in people (though he then couches it in terms of covenant marriage). But if I isolated those two sentences from the rest of Rev. Johnson’s statement, you’d probably think that he supported same-sex marriage!
Rev. Johnson then says that we need to stop talking about religion and start talking about what “works” and what is “true”. So does he have empirical evidence that same-sex marriages don’t “work”? And isn’t it odd that his “truth” comes from his Biblical worldview? I mean, we know that it is true that 2+2=4; we know that it’s true that the Earth orbits the sun. But I’m not sure that everyone would agree that the Bible is “true”. And do we know that it’s “true” that same-sex marriages are somehow bad or wrong? For that matter, based on divorce rates that hover around 50%, do we know that it’s “true” that marriages are good? In the end, though, I’m not really sure what he means when talking about “truth” other than as a way of saying that what he takes away from the Bible is “true” and what others take away from their own “religious” views (whether religious or not, according to Rev. Johnson) may be not be “true” … at least not if it disagrees with his truth.
Well, I think that about covers it. Certainly there is more to be said on the issue of HJR-3 specifically and same-sex marriage more broadly. I’ve written about those issues extensively on this blog and I have no doubt that I’ll continue to do so. But right now, the focus is HJR-3 and the Indiana General Assembly. If you think that HJR-3 is a bad idea, please let your legislator know. And maybe give a few dollars to an organization like Freedom Indiana that is working hard to prevent passage of HJR-3 and to help in the fight for marriage equality.
HJR-3 and the Threat of “Activist” or Unelected Judges
One of the arguments offered by proponents of the proposed “marriage discrimination amendment” (HJR-3) is the fear of unelected and/or “activist” judges intervening to redefine marriage in Indiana. Proponents claim that we need to “protect” so-called “traditional marriage”* by amending the Constitution in order to prevent one of those judges from acting against the will of Hoosiers. But is that really accurate?
I don’t really want to get into an argument about what is and isn’t an “activist judge” other than to note that conservatives have no issue with asking judges to overturn laws that they don’t like (remind me, how many lawsuits have been filed to stop Obamacare?) or to challenge what they believe are infringements of their rights (lawsuits about gun control laws, for example). Yet when the Supreme Court overturned a hundred years of jurisprudence in Citizens United or threw out elements of the Voting Rights Act (that had been reauthorized by Congress with votes of 390-33 in the House and 98-0 in the Senate), we didn’t hear screaming complaints about the role of “activist judges”. No. A judge is only an “activist” if he or she does something with which you disagree (and by “you”, I mostly mean conservatives). So a judge that recognizes that our country is based on principles of equality and thus rules that laws banning same-sex marriage are unconstitutional is an “activist”. Create new law that says that corporations are people? Not an activist. Say that loving couples should have the right to marry? Activist!
Anyway, what’s wrong with an “activist” judge looking at laws to decide if they’re unconstitutional? Isn’t that how our system is designed? If “activist” judges hadn’t intervened, African American children might still be attending “separate but equal” schools and interracial marriages would still be illegal in many states.
And this whole “unelected judges” thing? Right. Um. Not so much. You see, in Indiana, trial court judges are elected (and whether that is a good idea or not is the subject for another day). Judges can’t run issue-based campaigns, but based on party affiliation, it’s often a fairly safe guess for voters to know what sort of general worldview they may bring to the bench on certain issues. Even the judges on Indiana’s Court of Appeals and Supreme Court have to face a retention vote every 10 years. Only federal judges are “unelected”^.
But where the argument in favor of HJR-3 really breaks down is the suggestion that adding discrimination to Indiana’s Constitution will somehow “protect” Hoosiers from the decision of these mythical activist judges. Why do I say that? Well, consider this: At present, Indiana law already prohibits same-sex marriage. Yes, Hoosiers could file a lawsuit seeking to overturn that law as unconstitutional (as was tried in a lawsuit filed in 2002; the Indiana Court of Appeals rejected the argument and same-sex marriage remains illegal). If a new lawsuit is brought without HJR-3, it is likely that the lawsuit would take aim at the existing statute (again). And in that situation, the case would be heard by one of Indiana’s elected judges.
However, if HJR-3 is adopted and approved by Hoosiers to become a part of the Constitution, then litigation is probably more likely, especially given the current state of federal law on the question of marriage equality. And if a new case were filed taking aim at the newly amended Indiana Constitution, the case would most likely be heard by one of those unelected federal judges. You know, federal judges like the ones that recently held that Utah’s and Oklahoma’s prohibitions on same-sex marriage violated the United States Constitution.
It seems certain that we will see more litigation on the issue of marriage equality in Indiana. The question is whether that litigation will be examining Indiana’s existing statutory prohibition on same-sex marriages and be decided by Indiana courts or if that litigation will be examining Indiana’s Constitution and be decided by federal courts. In either event, and seemingly no matter what the General Assembly does, the issue of whether bans on marriage equality are constitutional will be determined by the courts.
So don’t be misled by the suggestion that amending our Constitution will somehow protect “traditional” marriage from judges.
*Remind me again how we define “traditional marriage” and what makes it so traditional? Once again, I feel compelled to post this:
^Recall, however, that it is the right of the President or Governor, as the case may be, to appoint appellate (and Supreme Court) judges. And unlike a Presidential judicial appointment, an appointment to the Indiana Court of Appeals or Supreme Court by the Governor is not subject to the consent of Indiana’s General Assembly. Thus, while the appellate judges themselves aren’t elected, the issue of the type of judges that the President or Governor might appoint are certainly important (though often overlooked) campaign issues.
HJR-6 Is Now HJR-3 … And the GOP Is Trying to Hide Their Intentions
By now, you may already be sick of hearing about HJR-6. Well, your prayers have been answered, because HJR-6 is no more. Now it’s HJR-3. Same language, same discriminatory ideas, same anti-freedom amendment … but a new number.
Now for those (few) readers who haven’t been following the debate (or this blog… and why not? Hmm? Hmm?), HRJ-6 … er … HJR-3 is the so-called “marriage discrimination amendment”. If passed, it would add to Indiana’s Constitution discrimination against homosexuals in the form of a ban against same-sex marriage and anything substantially similar to marriage:
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.
The meaning of the first sentence is obvious, but note the key second sentence.
Across Indiana, mayors, businesses, and universities have come out (yes, pun intended) in opposition to the adoption of this constitutional amendment on the basis of both business realities and notions of fairness. And note that the opposition is bipartisan; for example, both Republican and Democratic mayors have expressed opposition. Moreover, popular opinion on the broader issue of gay rights and the specific issue of marriage equality has been evolving very rapidly … except among the far right core constituency of many of Indiana’s GOP legislators.
And thus Republican legislators find themselves in a bit of a bind. They can push for the adoption of the marriage discrimination amendment so that it goes on the ballot in November 2014, to a fate that looks far less certain that it did just a few years ago. That will make their core constituency happy, but at what expense? Is it worth shoring up a base to protect against a challenge from the right or is it more important to not become a target for scorn from the business and academic communities and from the evolving majority of Hoosiers who may or may not support gay marriage but who don’t believe that discrimination should be added to the Constitution? Is it more important to do what a vocal minority is screaming for and risk Indiana’s reputation as an attractive environment for new businesses? Is it worth showcasing “conservative” or “Biblical” credentials at the likely expense of extensive litigation against the State? Is it worth trying to show how much you don’t like homosexuals at the expense of probably attracting a virtual “who’s who” of gay activists over the coming year?
Thus, Indiana Republicans have devised a few neat little tricks. First is the change in the bill’s numbering from HJR-6 to HJR-3 (“HJR” stands for House Joint Resolution, essentially legislative mumbo jumbo). Will the switch confuse people? Perhaps. Certainly the lawn signs, bumper stickers, and t-shirts and so forth that mention opposition to HJR-6 will now be obsolete. On the other hand, people who paid a few dollars for those signs, bumper stickers, and other swag may be willing to pony up a few more dollars for new materials, thus adding further funds to the coffers of Freedom Indiana’s efforts to oppose the amendment. And “six” was a tough word to use in catchy slogans; “nix six” just didn’t get the blood moving; but “three” just happens to rhyme with some other interesting words … like “free”.
But it’s the second trick that I want to focus on. Several Republican legislators have introduced House Bill 1153 as a “companion” to HJR3:
Marriage Amendment to the State Constitution
Sec. 1. As used in this chapter, "marriage amendment" refers to any amendment to Article 1 of the Constitution of the State of Indiana concerning marriage that was proposed by the one hundred seventeenth general assembly (P.L.231-2011) and agreed to by the one hundred eighteenth general assembly.
Sec. 2. The general assembly intends and establishes that the purpose of the marriage amendment is to restrict the state, through legislative, executive, or judicial action, from creating or recognizing a legal status between unmarried individuals equivalent or substantially similar to marriage between one (1) man and one (1) woman. The first sentence of the marriage amendment prohibits the recognition of marriage between persons other than one (1) man and one (1)woman. The second sentence of the marriage amendment prohibits the state from circumventing the mandate of the first sentence by creating or recognizing a legal status equivalent or substantially similar to marriage by a different name.
Sec. 3. The general assembly intends and establishes that the marriage amendment does not prohibit or restrict in any way: (1) the extension of employment benefits by private sector employers, political subdivisions of the state, or state educational institutions to any beneficiary designated by an employed individual; (2) the adoption and enforcement of local ordinances granting to any category or class of persons equal opportunities for education, employment, access to public conveniences, access to accommodations, or acquisition of property or to rent property; (3) an individual from entering into or enforcing terms of a power of attorney, a will, a trust, or another similar lawful agreement or instrument (regardless of name) established for the benefit of another person; (4) an individual from giving or enforcing a lawful consent or other instrument (regardless of name) that grants powers, rights, or privileges to, imposes obligations on, or provides for the use by or transfer of property to another person; (5) the protections provided under Indiana's domestic violence laws or who may qualify for protection from domestic violence; or (6) action by the general assembly to protect or provide for the property, health, or safety of unmarried persons by appropriate legislation.
Blogger Doug Masson’s analysis of this trick is spot on (by the way, if you’re interested in Indiana politics and you don’t read Masson’s blog, then you’re really doing yourself a disservice):
This is just backward. The General Assembly does not get to say what the Constitution does or does not do. The Constitution gets to say what the General Assembly can or cannot do. Furthermore, the General Assembly’s intent is not the only relevant consideration. A Constitutional Amendment is also passed by the voters. Perhaps their intent is different than that of the General Assembly? If the intent of the voters is different than that of the General Assembly’s, whose intent governs? Also worth keeping in mind, the next General Assembly could just come along and repeal this law while the Constitution would continue to contain the language of HJR 6/3.
If proponents of the resolution want all of this clarification; I think they need to put the relevant language into the proposed amendment. And, really, if you need that level of particularity to achieve your desired goals; the policy is probably better suited for a statute than the Constitution.
Moreover, as someone (sorry, but I can’t recall who…) suggested on Twitter, the adoption of HJR-3 by Hoosier voters might actually make HB 1153 unconstitutional (because HB 1153 would be attempting to permit conduct that is prohibited by the Constitution).
Let’s take a closer look at one part of that “explanatory” language. The second sentence of Section 2 says:
The second sentence of the marriage amendment prohibits the state from circumventing the mandate of the first sentence by creating or recognizing a legal status equivalent or substantially similar to marriage by a different name.
But might that language contravene the second sentence of the HJR-3 itself:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
If the purpose of HJR-3 is to prevent the state from “circumventing the mandate … by creating or recognizing a legal status equivalent or substantially similar to marriage by a different name” then why isn’t that the language of HJR-3? The “explanation” talks about circumventing but the proposed amendment talks about recognition and validity. Moreover, how exactly would the State go about “circumventing” a constitutional prohibition? Hmm. Wait a minute. Isn’t that what courts are for? You know, to decide when something is unconstitutional? Like, hmm, say, discrimination against a particular class of people…
Then look at the laundry list of items in Section 3 for which HB 1153 declares that the “general assembly intends and establishes that the marriage amendment does not prohibit or restrict”. Hmm. Curious. I wonder: Could Congress pass a law that says “The First Amendment does not prohibit or restrict laws that make Islam illegal” or a law that says “The Second Amendment does not prohibit the restriction on the right possess ammunition”? Could the State of Indiana pass a law that says that Indiana’s Bill of Rights doesn’t prohibit the General Assembly from discriminating against those who aren’t Christian or who might happen to be African American or Latino?
You see, the General Assembly doesn’t get to pass laws that say what the Constitution does or doesn’t mean or decide what is or isn’t prohibited by the Constitution. The General Assembly passes laws and the courts interpret those laws in accordance with the Constitution. And future General Assemblies can change those laws. And that is the reason that proponents of HJR-3 want its discriminatory language added to the Constitution in the first place; they want it to be much, much harder for courts or a future General Assembly to change or reject Indiana’s current legal (as opposed to constitutional ban) on same-sex marriages or civil unions.
It seems to me that Indiana Republicans are, in a way, trying to hide their intentions with the marriage discrimination amendment. The introduction of HB 1153 seems to be designed to say, “Gee, we’re really not homophobic bigots who want to enshrine real discrimination in the Constitution”. But we need to recognize that HB 1153 and its “protections” are nothing more than a trick, a smokescreen, a farce, all designed to hide the real intention of HJR-3: To add discrimination into Indiana’s Bill of Rights.
I think Indiana Republicans are running scared (well, except for the “true believers”…). Many of them don’t want HRJ3 to come up for a vote; they don’t want it to be put before the voters (how will that make Indiana look as millions are spent advocating state-sponsored bigotry in an age when attitudes are rapidly shifting?); and they don’t want those who oppose HJR-3 to get even more involved in the political process, especially in an election year. Those who support HJR-3 are already going to turn out to vote in November 2014, but if opponents are able to mobilize (and with the amount of money and high profile appearances that are likely, then mobilization is almost assured), legislators who supported HJR-3 could find themselves the target of a very aggressive, very expensive, and very vocal campaign. And so Republicans (again, other than the “true believers”) will try everything they can to “solve” this problem.
There were high hopes that the General Assembly might revise the proposed amendment by deleting the second sentence, thus pushing the issue out at least until 2016. Instead, it looks like the Republicans have chosen to try tricks to placate those who might not have decided what they think (or who haven’t paid enough attention and might, therefore, be easily confused or distracted). That is a shame. But it’s not a surprise. Now those who oppose constitutional discrimination need to raise their voices against HJR-3 and, in so doing, will need to explain to Hoosiers why the “companion” bill is nothing but a farce and an ineffectual trick.
