HJR3 – Sheila Kennedy

Testing…

Arguments about morality have been hurled from both directions in the fight over HJR3. Those who want to place the ban on same-sex marriage in the state’s constitution argue that (their version of) biblical morality demands it; those of us on the other side–religious and not– define morality in terms of how we treat other people, and find HJR3 lacking.

There’s another “moral” question involved, however, and it is less often noted.

You might think of HJR 3 itself as a moral test being administered to Indiana legislators.

I have a good friend who is a lobbyist. He’s over at the statehouse every day, and–like all lobbyists–engages in constant conversations with Indiana lawmakers. He tells me that a fair number of those who can be counted on to vote for HJR3 know it is the wrong thing to do. They will admit–privately–that it will hurt Indiana, hurt children being raised in GLBT families, that it is bad public policy, and even that it is morally wrong.

But they “have to” vote for it because they represent conservative areas of the state. Because they might face a primary challenge if they vote their minds and consciences. Because it would be awkward explaining a “no” vote to their constituents.

My friend finds this understandable, if regrettable. I find it despicable.

Sometimes, life gives us hard choices. We’ve all found ourselves in situations where we have to choose between doing what we know is the right thing and doing the easy, self-serving thing. How we act in those situations is the true test of character and morality.

Some of our legislators are truly homophobic. Others believe, for whatever reason, that gay citizens are not entitled to equal rights. They’re wrong, and most of them probably realize that they’re on the wrong side of history. But they’re voting their beliefs, however benighted I may consider those beliefs.

The truly contemptible lawmakers are the ones who know better, the ones unwilling to do what they know is right because doing so might entail some personal cost.

They fail the test. Big time.

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How a Bill Shouldn’t Become a Law

Remember the old cartoon developed to teach students “how a bill becomes a law”?

A proposal is introduced. It is assigned to a committee that reviews it, hears testimony about it, and deliberates its merits. The committee then votes whether to advance the measure. If the vote is affirmative, the entire chamber votes on it.

In bicameral legislatures (those with both a House and Senate), a positive vote sends the bill to the other house, where the process is repeated.

Speaker of the House Brian Bosma is teaching young people–who are disproportionately interested in the fate of HJR 3–a different lesson.

What if a bill the Speaker really wants passed is assigned to a committee that actually does its job–a committee that deliberates based on the evidence before it and the testimony it has heard? What if that committee then concludes that the bill should be defeated?

Why, you just change the rules.

You don’t abide by the decision of the lawmakers you assigned to make that decision. You cheat.

Speaker Brian Bosma insists that there is nothing unusual in his decision to take HJR 3 away from the committee to which it was originally assigned. And it’s true that some bills are reassigned, mostly in order to expedite the process, or because on closer examination the bill really belonged elsewhere.

In this case, the change was made for one reason only: to get the result Bosma wants. The decision he couldn’t get playing by the rules.

Even more incredibly, the Speaker has scheduled the new committee’s vote for tomorrow. The vote will be taken without the benefit of evidence or testimony–but then, as we’ve seen, the Speaker considers evidence and testimony irrelevant. The only thing committee members need to to know is what the Speaker wants them to do.

Usually, the power plays and the wheeling/dealing is done behind the scenes. This time, that wasn’t possible. This time, everyone got to see what is seldom on public display: the House leadership’s absolute contempt for democracy and the rules of fair play.

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“Clarifying” HJR3

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.

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