Civil Discourse Now

Where the far left and far right overlap for fun and enlightenment

Today's Show: HJR 6 or 3, HB1153, equal rights and a Republican con game.

   A lot of people are unaware our State has its own constitution, separate from the Federal constitution. Written in 1850 and 1851, not only does it establish the structure of the Hoosier government, it also has a Bill of Rights. One might ask why a State needs a Bill of Rights when the United States Constitution has a Bill of Rights and, according to the Declaration of Independence, "rights" are universal. State constitutions trump---I use the word "trump" as a metaphor for euchre, Indiana's State Card Game, rather than as a metaphor drawn from bridge---when the effect will be an expansion of rights. As an example, right to counsel in Indiana has been more extensive than the parallel right in the Sixth Amendment of the Federal Constitution. A corollary to this rule of construction is a State's constitution cannot narrow the rights recognized---notice I did not say "created"---by a State's constitution. In that event the Supremacy Clause of the United States Constitution becomes the right bower in the hand and the trick goes to liberty.

   Indiana has a specific procedure for amendment of its Constitution. Two sessions of the General Assembly must pass a proposed amendment. Then the proposed amendment is place on the ballot for the voters to adopt or reject for their Constitution.

   HJR6 was passed by the General Assembly once. It would restrict the definition of marriage as being between one man and one woman. A second sentence in the proposed amendment muddied things up. This session of the General Assembly will take up the issue of the second passage of HJR6 so that the matter then can be voted on by the people of the State. There is a problem, though, with the legislative effort. Along the way, people in the country, and even in the Hoosier State, began to express acceptance of the notion that marriage is a matter of right. The United States Supreme Court has held that matters related to marriage, family, and procreation are protected by the Fourteenth Amendment.  The polls swung the way opposite from the positions of the Republican sponsors of the amendment. The polls might have swung further as people questioned why such things as adoption, insurance coverage, equal employment opportunity, and other matters should be affected by anachronistic attitudes. I have read no good answers to those questions. Some people will fall back on religious beliefs, but that would (1) involve an interpretation of a religious book subject to serious challenge and (2) have the effect of imposing one view of one religion on everyone else through a course of discrimination. 

   A funny, as in odd or peculiar, thing happened this week in the battle over HJR6. The bill was reintroduced as HJR3, or House Resolution 3. Bills are numbered according to when they are introduced in a session. For the sake of simplicity, it was well within the scope of the General Assembly's ability to number the matter "HJR6" for this session ,if only for clarity' sake. Confusion might be a goal in the new number. Republicans might seek to distance themselves from the old HJR6. Like the New Nixon of 1968, HJR3 might be more easily sold to Indiana voters.

   The numbering of the bill was not the most peculiar aspect of its introduction. What was peculiar was a House Bill that also was introduced. HB 1153 sets about to assure people the legislative intent of HJR6/HJR3. Legislative intent is something to which courts look when those courts are uncertain how to construe a statute. The world of law depends upon words. Words are not laid out like sidelines on a football field. Even with the objective reality (unless one is a nihilistic solipsist) arguments arise about whether a player crossed the goal line or stepped out of bounds. Statutes, made up of words, potentially are more problematic. Therefore courts will look to the intent of a legislature when in enacted a law. The same notion arises when people talk about the intent of the Framers when the United States Constitution was written in Philadelphia in 1787.

   Another odd thing about HB 1153 is that it seems to be a checklist of the problems people found with HJR6/HJR3. Do you have a problem with the proposed constitutional amendment because it might affect inheritance? That is taken care as wills and trusts are not affected by the proposed amendment. One can check all the provisions of HB 1153. It would appear to be a palliative for people otherwise disposed to vote against the measure when it could be on the ballot in November.

   More troublesome is that HB 1153 has no effect on legislative intent. As our Indiana Supreme Court has held, subsequent legislation cannot serve retroactively to amend or declare the intent of a prior General Assembly.  Sales v. State, 723 N.E.2d 416 (Ind. 2000). At least part of the enactment of the proposed amendment occurred in a prior General Assembly, therefore by case precedent HB 1153 is meaningless. As a philosophical matter it is meaningless because how can one impute 80-some lines of exceptions as the intent of the voters of Indiana when they cast a ballot on a two-sentence proposed amendment to our Constitution?

   Like one former World leader of whom I can think, Republicans sprung this little surprise at the start of a weekend, when people in the General Assembly could not act immediately.

   At best, the Republican leadership has presented window dressing, in the form of HB 1153, to garner votes for passage of an enactment of discrimination. At worst, they have done so to trick the voters of Indiana. HJR6/HJR3 must pass two sessions of the General Assembly before being presented to the voters of Indiana on the ballot. A House Bill need only receive a majority vote of the Indiana House of Representatives and the Indiana Senate and the signature of the Governor.

   I can foresee Republicans' concerted efforts to pass HJR6/HJR3, pointing to HB 1153 to convince Indiana voters there is nothing to fear from the proposed constitutional amendment, as the intent is right there in HB 1153, where all their misgivings are assuaged. If the proposed amendment then is enacted, at the next session of the General Assembly, HB 1 would be repeal of HB 1153 because, on second thought, that really was not what the General Assembly meant. After all, Indiana represents Hoosier values, and Hoosier values equal what the Republicans, members of the only political party with values, say values are. Republicans hold super-majorities in both houses. The measure would quickly pass and go to the desk of Governor Pence, who will be a luncheon guest this week of the lobbying group working so hard for passage of HJR6/HJR3 or whatever is ultimately will be called. That's another strategic move. If one changes the name of the thing, one confuses matters. Out of confusion can emerge victory for those who would enact a matter against the beliefs of a majority of Hoosiers, as recent polls predominantly indicate.

   Just as 1968 did not give us a "new Nixon," HJR 3 fails to possess any novelty as compared to the old HJR6. The new Nixon, like the Nixon of 1962 and before, was the same paranoid, bitter martini-guzzling megalomaniac. Ad guys from New York dressed him up differently. He even went on "Laugh-In." In 1974 we saw him for who he was, the same guy who broke down after he lost the race for Governor of California to Pat Brown, and exclaimed "You won't have Nixon to kick around anymore because this, gentlemen, is my last press conference." 

   On today's Show we had hoped to have a debate about HJR6/HJR3, with representatives of both proponents and opponents. Unfortunately, the invitation I extended yesterday received neither acceptance nor any real response. Instead, we shall discuss the matter. If you want to call into The Show, I will give our number on the air between 11 am and 1 pm.

   Last year one social commentator said the problem with the two major political parties in this country is that one has no balls and the other no brains. Gender connotations aside, I would say the Grand Old Party, in regard to HJR6/HJR3/HB 1153 lacks both. This is a cowardly effort at enactment into our Constitution through subterfuge.   

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Comment by Paul K. Ogden on January 11, 2014 at 10:34am

I think HB 1153 is probably fine for declaring legislative intent.  While you have a good point about it was passed previously before HB 1153, HB 1153 is being passed contemporaneously with regard to SJR 3 and it will be submitted to the voters on a referendum with that statute in place.  At best it's an open question whether it could be considered as legislative intent.  It's certainly not an open and shut case that it can't be.

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