INDIANAPOLIS (AP) — Slipped in between the emotional testimony at legislative hearings and arguments from both sides in Indiana’s gay marriage battle this past month has been the surprising revelation that Indiana lawmakers have become increasingly more reliant on “locking” down their preferred policies by placing them in the state constitution.
The power players on both sides of the marriage fight are well-known by this point. Activists with Freedom Indiana have packed both House hearings on the issue this month, wearing red shirts and other clothing to signal their opposition to the proposed ban, House Joint Resolution 3. Religious conservatives led by a trio of Statehouse lobbyists with deep ties in Republican circles have quietly and successfully used the levers of power to advance the ban through the General Assembly.
Meanwhile, DePauw University student Mickey Terlep has quietly worked the halls of the Statehouse over the past few weeks, delivering research that shows the history of alterations to the state’s constitution. He completed the research with fellow DePauw student Leif Anderson.
Carrying a chart of the alterations made to the state constitution since it was written in 1851, Terlep has outlined how changes for many years consisted of conforming with federal amendments (such as granting African-Americans and women the right to vote) or altering the structure of government (such as allowing governors to serve to serve two consecutive terms.)
But a new trend has emerged, Terlep says: Lawmakers are increasingly using the state’s constitution to write laws instead of following the traditional process of passing bills through the House and Senate on their way to the governor’s desk and eventually the state code.
“This transformation raises the question: ‘Why have lawmakers sought to use constitutional amendments as a means for enacting specific public policies?’” Terlep told members of the House Elections and Apportionment Committee last week. A few minutes later the committee voted 9-3 along party lines to send the proposal to the House for consideration.
Much like amending the U.S. Constitution, amending Indiana’sconstitution is a lengthy and arduous process that comes with some permanency. State law already bans gay marriage. Placing that ban in the constitution would protect it from changes by future lawmakers or state courts, but would falter before any U.S. Supreme Court ruling.
“I believe (House Joint Resolution 3) is an example, along with other amendments such as the property tax cap and the right to hunt and fish, of the older generation attempting to lock in their views and impose them upon my generation,” Terlep said last week.
The very language of the proposed amendment itself seems to support Terlep’s statement. The sparsely worded measure includes only two sentences: “Only a marriage between one man and one 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 second sentence goes beyond simply banning gay marriage and bars lawmakers from ever approving civil unions or anything else “similar” to marriage. It’s that second sentence that has become one of the clearest sticking points among Republican lawmakers who otherwise support limiting marriage to being between one man and one woman.
Supporters of House Joint Resolution 3 have consistently argued that the ban in the constitution makes it harder for future legislatures to undo.
But talk of “letting the voters decide” has sparked some snarky comments from legislative Democrats, many of whom were rebuffed when they suggested putting other issues, such as the right-to-work ban on union fees, to Indiana voters.
“That’s a cop-out and it’s always been a cop-out,” said House Minority Leader Scott Pelath, D-Michigan City, when asked about having voters decide the marriage amendment.
“The process has always been that the two independently elected legislatures do every bit of analysis that they possibly can,” he said this past Friday. “You don’t just throw any idea that anybody has out to the voters.
“You could apply that to anything,” he added. “I mean any bill that Rep. Jeff Thompson introduces you could say ‘Hey, let’s throw it out to the voters.’ I don’t think anyone in the Legislature would agree that would be good politically or good from a policy standpoint.”
Based on the DePauw students’ research, however, many lawmakers appear to think otherwise