Defining marriage amendment - again

I originally posted this to my other blog and then decided it was too political for that one.

Others write more eloquently on this subject. Doug Masson has a very good post here. However, this post on Advance Indiana spurred me to write this post on this blog. I suggest that you read their posts as well as mine. Gary Welch is correct that this is a situation where the lawyers should speak up rather than leave it just to the politicians. I am fairly certain many of my client are not unsupportive of this amendment. So I feel I am sticking my neck out here. However, I am not here to discuss theological points or political points.

Excuse my bluntness but I find this amendment offensive to the state constitution. I also find it a mere political expedient but that I do not find so offensive. I expect the proponents of this proposal to deal in hype divorced from reality. I do not expect them to mangle Indiana's Bill of Rights. You can look at the proposed amendment here.

Why do I write "mangle"? The other writers have the links to all the law but one. I do not see any mentioning the first section of Indiana's Bill of Rights. No one seems to notice Section One of Indiana's Bill of Rights. Since it seems impossible to link to the specific sections of Indiana's Bill of Rights, here is the entire text of Section One:

WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

(Indiana's Bill of Rights in its entirety is here.) I see the proponents of this amendment wanting to neuter the Declaration of Independence. If people really want this amendment defining marriage, then they should also amend Section One. Maybe so that it reads like this

WE DECLARE, That all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

I call this version mangled but it does possess a certain honesty - if this marriage definition amendment passes

The Indiana Law Blog excerpted several news stories on this and I found this part of one excerpt very interesting:

But Jim Bopp, an attorney who is active in state and federal election cases and anti-abortion cases, told senators that such claims "are bogus." He said the Indiana proposal's language is significantly different from that of Ohio's ban.

Bopp said the Indiana language would simply prevent a court from ordering marriage-like benefits for unmarried couples. But he said it wouldn't prevent the legislature from writing laws that allow unmarried couples to have specific benefits.

I do not know Mr. Bopp but I have heard of him. Assuming from his reputation that he is not an idiot, I find his statement disingenuous to say the least. All that gays and lesbians want are those marriage-like benefits that our state government confers on married people. Indiana does not recognize common law marriage but Indiana does recognize some cohabitation rights for unmarried couples. Those include opposite sex couples. So this amendment does affect opposite sex couples. Those cohabitation agreements get enforced in our courts and not in the General Assembly. Mr. Bopp's argument gives the General Assembly the power to legislate for unmarried couples but would not let the courts enforce those agreements.

I do think that Section One mandates that the state government confer those marriage-like benefits of Mr. Bopp on gays and lesbians. We have a statute preventing same-sex marriage but I know that the Indiana Supreme Court will never follow Massachusetts and Vermont and New Jersey and find that law unconstitutional. So this amendment serves no real purpose other than scaring those of us Hoosiers into supporting the proponents of this amendment. So the amendment advances the political ambitions of a few while doing nothing more for those frightened by the phrase "gay marriage" than already accomplished by statute and creating potential harm to those of our fellow citizens who are not the immediate target of this amendment's proponents.

These consideration ought to be enough for us to think rationally and find this proposal a bad idea. Still, how the proposal explicitly mangles the equality rights contained in Section One angers me. These rights existed in Section One since 1816 but they are not mentioned in connection to this amendment. That they go unmentioned strikes me as dishonest and disservice to those are being lead to believe that this amendment is a good thing.