The Indiana General Assembly has re-introduced the constitutional ban on same-sex marriage previously known as HJR6–it is now HJR3–and in an effort to blunt mounting criticisms of the measure’s “what the hell does that mean?” second sentence, they’ve introduced a “clarifying” companion statute.
As a number of lawyers have pointed out, the “clarification” is a legal non-starter: legislative bodies don’t get to tell judges how to interpret constitutional language, and efforts to do so raise substantial separation of powers issues. The lawyers serving in the Indiana General Assembly undoubtedly know how meaningless this legislation is, but then, its purpose was political, not legal. HJR3’s second sentence is a disaster, and this is just a lame effort to obscure that fact.
Attempts at distraction aside, here’s what mystifies this recovering lawyer:
Over and over, its proponents insist that a state constitutional amendment is needed because Indiana’s current statute defining marriage as a union between one man and one woman isn’t strong enough. We’re told a constitutional amendment is needed to protect Indiana’s existing ban from “activist” judges.
This is utter horse poop. (I am trying to watch my language.)
In Indiana, “activist” state court judges have already upheld Indiana’s legislation banning same-sex marriages. So there is no threat from the state bench. And a state constitutional provision would be utterly useless should the U.S. Supreme Court affirm a right to marry. In such a case, a state constitutional measure would be just as unenforceable as the existing statute.
Let me spell this out slowly, for those crack legal minds (or was that legal minds on crack?) in the General Assembly: passage of HJR3 will not “protect” Indiana’s current ban on same-sex nuptials.
That isn’t to say that passage of HJR3 would be meaningless. It would do several things: send a signal that Indiana is a backward, intolerant state; invite lots of litigation inviting those “activist judges” to figure out what the hell the second sentence does or doesn’t mean; encourage members of Indiana’s creative class to consider relocation; and make it far more difficult for Hoosier businesses to recruit “the best and brightest.”
Those consequences are clear enough.