I thought Indiana HJR-6/3‘s second sentence, now gone, was problematic because it was going to invite litigation over its meaning.
Now that the second sentence of HJR-3/6 is gone, its former opacity gives way miraculously to lucidity: it was a ban on civil unions. Yup. That’s what it was.
Score one for Team HRC. They may now hope to get through civil unions (the possibility of circumventing a “Civil Union” ban by finding a new name was why the second sentence was a bit opaque) what the second sentence sought to deny them.
If some conservatives think I was wussy about the second sentence, remember the Equal Rights Amendment: “Equality of rights under the law shall not be denied on account of sex.” Conservatives had no difficulty understanding how language so sweeping invited litigation back then.
ERA was a platitude, designed to make legislators sound good for uttering it, while leaving the heavy interpretive lifting to the courts so legislators could get back to graft, corruption, sodomizing interns (“See. I’m a feminist. I voted for ERA. Could I get a little, please?”) and other lifestyles of the powerful and famous.
The second sentence of HJR-3/6 risked, though, frustrating future legislatures’ bona fide efforts to grant some legitimate legislative requests of same-sex couples. Surely there are some marginal marital-looking privileges that would have been imperiled by the second sentence interpreted by a not-very-bright judge.
I’ll admit I’ve had a few second thoughts. Maybe the goal of not incentivizing motherless or fatherless families would have been worth the litigation over interpretation of the second sentence. But the debate has gone on for years, and for every point, there’s a counterpoint, including one little discussed: how courts gleefully pounce upon, and quote in their opinions, the most extreme anti-gay (no scare quotes) rhetoric in a referendum campaign in favor of any restrictions on “gay rights” (note scare quotes).
Ya’ just can’t win when you’re “on the wrong side of history.” Damned if you do, damned if you don’t, and federal judges are the Monday Morning Quarterbacks who call it.
* * * * *
“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)