Thursday, January 9, 2014

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.

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