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.

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