The marginally-less-discriminatory amendment
Last night, the Indiana House voted 52-43 to amend HJR 3, the proposed anti-LGBT constitutional amendment. That vote strips the second sentence from the amendment, which read:
A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
The amendment was offered by Rep. Randy Truitt (R-West Lafayette). House Democratic leader Scott Pelath (Michigan City), Rep. Ed Clere (R-New Albany), and Rep. Matt Lehman (R-Berne) had each introduced similar amendments to remove the second sentence.
Many critics of HJR 3 had pointed out problems with the vague language in the second sentence. (For example, similar language in Michigan’s gay marriage ban was determined to prevent domestic partner benefits in 2008.) Rep. Eric Turner (R-Cicero), the author of HJR 3, sought to alleviate some of those concerns with his companion bill, HB 1153. That bill had its own set of problems, as Doug pointed out:
The General Assembly is attempting to specify what the law would be. Problem is, in this instance, they do not have the power to specify the law in this fashion. The Constitution trumps legislation. If the Constitutional language means something different, then the legislative specification has no more impact than me “specifying” or “clarifying” the law on my blog.
Rep. Clere had also introduced other amendments to HJR 3, which were not brought up for votes:
- Amendment 4, which specifically exempted domestic partner benefits, local equal protection ordinances, and domestic violence protections.
- Amendment 6, which added that it did not preclude “recognition of a marriage validly performed in another state.”
- Amendment 7, which added that HJR 3 “shall [not] be construed to diminish the value or contribution to society of” unmarried couples, divorced couples, unmarried parents, or individuals who do not have children. (I guess we married couples without children are still diminished.)
- Amendment 8, which clarified that the definition of marriage applied only “[w]ith regard to the rights and obligations imposed or provided by the State of Indiana.”
During last night’s brief debate, Turner tried to defend the second sentence, saying that any concerns over domestic partner benefits were unfounded: “We’ve said for all these years that it… does not affect that.” He went on to say that the potential for a court challenge would be “greatly enhanced” if the second sentence was removed. Rep. Woody Burton (R-Whiteland) joined Turner in defending the second sentence, arguing that HJR 3 was the result of a decade of work. Burton also said that marriage has been one man and one woman “since the beginning of time” — indicating to me that he is completely unfamiliar with the Bible, anthropology, or even basic American history.
On the other side, Rep. Clere cited the “grave concerns” of the experts who testified that the second sentence could have serious impacts on “the rights of Hoosiers and their employers.” He encouraged his colleagues to remove the second sentence, citing the problems that Michigan and Kentucky have had with similar language, but went even further, calling the very idea of HJR 3 “fatally flawed”:
Make no mistake. Deleting the second sentence will not fix HJR 3. The only way to fix HJR 3 would be to delete both sentences.
Rep. Sheila Klinker (D-Lafayette) also supported removing the second sentence, saying it was at least a first step in correcting the problems with HJR 3. In a broader argument against the bill, she also cited her friend, the late state senator Anita Bowser, saying:
You never put anything in the Indiana Constitution of the US Constitution that takes people’s rights away. Our Constitution is to defend people’s rights, never to take them away.
Rep. Kevin Mahan (R-Hartford City) gave an emotional speech on the House floor, explaining his evolving position on the issue with repeated references to “issues of conscience.” Despite calling his vote for this constitutional amendment in 2011 “one of the easiest votes” he’s ever cast, his conversations with a wide variety of his constituents changed his mind. While he and many of his constituents believe that marriage should be defined as between one man and one woman, he said, they don’t agree with banning civil unions or domestic partner benefits.
I think Mahan’s statement is a really good encapsulation of what transpired last night:
I do not believe having a two-and-a-half-page bill to describe what one sentence is intended to say is good policy. If we cannot understand in this body exactly what that second sentence means, how can we expect millions of Hoosiers to understand what it means when they go to the polls in November?
So what happens now? Well, there’s some confusion over that. The General Assembly is scheduled to reconvene at 1:30pm today, and may vote on final passage of the bill as amended.
Here’s how HJR 3 reads after Rep Truitt’s changes:
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.
So we’re still moving forward on writing discrimination into our state constitution — it’s just not quite as discriminatory as it was before.
Next, it heads to the state Senate, where Republicans hold a 37-13 advantage. The Senate could vote to restore the second sentence — if they do that, it’s unclear what would happen. While the normal procedures would require the House to concur with the Senate’s changes, Marcia Oddi points out that that may not necessarily be the case. If they don’t add that sentence, then HJR 3 would have to pass both houses of the next General Assembly session before heading to the voters in 2016. (There’s also the issue of the companion bill, HB 1153, which directs that the measure be placed on the ballot in November.)
My state rep, Steve Stemler (D-Jeffersonville), did not vote — he, along with 4 others, are marked as “excused.” Stemler had himself added as a co-author on the constitutional amendment in 2011, and voted against removing the second sentence. He ultimately did not vote on passage in 2011 (PDF) — he was marked as “excused.” He was also listed as a co-author of another version of the marriage discrimination amendment in 2008.
Rep. Steve Davisson (R-Salem) was excused from voting, as was Rep. Terry Goodin (D-Austin). (Goodin also missed the committee vote last week with a family medical emergency.)
Rep. Clere voted in favor of removing the second sentence. Rep. Rhonda Rhoads (R-Corydon) voted against removing the second sentence.