The Indiana House yesterday passed HJR 6, an Resolution to amend the Indiana Constitution on the topic of marriage. I have misgivings.
I say this with some regret. I’m not a supporter of same-sex marriage. I’m not a supporter of civil unions, domestic partnership, or whatever you want to call it as some sort of compromise (more about this later).
A few years ago, I even played a bit part testifying in favor of another proposed marriage amendment (before a House Committee where the Democrat Speaker assured that it would not see a floor vote).
It seems to me (1) that the most compelling reason for a marriage amendment is to keep the Indiana Courts from changing their minds and interpreting the State Constitution to require recognition of same-sex marriage, but (2) this amendment does something dubiously different or beyond that.
Here’s the Resolution:
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 first sentence thwarts not only errant courts, but future legislatures and possible majority opinion. That’s not the end of the world — amending the Constitution on such matters is meant to thwart things, including ephemeral paroxysms of majority opinion — but it’s not the same as thwarting the courts. It’s a little more radical than saying “this is matter properly for the political processes.”
- The second sentence is very ambiguous, thus inviting litigation to test its meaning (and thus, ironically, mightily empowering courts to resolve questions of public policy), and it arguably goes further than I am willing to go.
Let’s focus on the second sentence a bit. “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
- What is a “legal status”? Would that include the relationship of “partners” by a private written agreement? I’m inclined to think not, but I’m not certain.
- What is “identical or substantially similar to … marriage”? I know that “substantially similar” is very susceptible of a broad interpretation.
- “Shall not be valid or recognized” would preclude not only civil union legislation, but perhaps some existing domestic partner benefits policies, such as that of some of our Universities. I wasn’t supportive of those policies (I would have preferred either no such policy or a policy based on the employee having a dependent, irrespective of erotic involvement connoted by “domestic partner”). If “legal status” is broader than I think, it could preclude court enforcement of private agreements — and it’s a legal commonplace (or is it tautology?) that an unenforceable agreement is legally worthless.
I’m aware of all the slogans about how awful it is to “enshrine discrimination in the Constitution” and yadda, yadda, yadda. But I’m reminded, once again, of a French witticism and the context in which I first read it:
One suspects that the bashing of the religious right amounts to little more than that right-thinking people find the religious right distasteful. The logic is “We are good, true and beautiful. But we find you repulsive. Therefore there must be something very wrong with you.” The reasoning is impeccable given the first premise, but perhaps the first premise is false.
The French have a witticism: “Cet animal est tres mechant; quand on l’attaque, il se defend.” (This animal is very wicked; when you attack it, it defends itself.) The religious right did not start the fight. For more than a quarter century, elite, privileged, sophisticated, and “right-thinking” Americans have exhibited contempt for some fundamental values, and have exhibited even greater contempt for the religious traditionalists who hold them.
(David Carlin, Right Thinking About the Religious Right, First Things, November 1994)
“Marriage” is an equivocally civil-religious term. For better or worse, the religious and civil aspects have not been scrupulously distinguished.
So, apart from concerns that there’s some strong delusion behind same-sex marriage going from unthinkable to nearly axiomatic in less than 50 years, there is a pretty well-founded intuition that same-sex marriage will in various ways, far beyond the limited scope of this little piece, threaten religious freedom.
Still, I believe in leaving some room for the popular will. If a majority wanted to create civil unions, enjoying some of the incidents of marriage, I would be inclined to oppose it. I would not expect the debate to be particularly enlightening about the state interest justifying such a status; it would probably consist of the same incoherent “equality” and “rights” talk that currently characterizes one side of the marriage debate. On the other side, Chicken Little is handling the P.R.
I would especially think civil unions foolish if they were viewed as an enduring compromise. At least one state court (California, I believe), perversely turned such compromise on its head, saying, in effect, “you’ve given them all the same rights; only invidious discrimination could motivate you to withhold the word ‘marriage’.”
But I think that the deliberate majority is entitled to pass many foolish laws, whence much of my misgivings about the second sentence.
If the goal was to stymie the courts, and only the courts, it seems to me that an amendment could have read something like this:
Nothing in this Constitution shall be construed to require either (a) recognition of marriage between more than two persons or between two persons of the same sex or (b) extension of rights now particularly dependent upon the status of married person to non-married persons.
I’m pretty sure I’d vote for that. I’m not so sure about HJR 6. I’m leaning against it currently.
I’ll want some very good explanation, and the way political discourse goes these days, all I really can expect is a bunch of damned sound bites and vacuous slogans from both sides.