21 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Last week the Indiana House Judiciary Committee heard testimony on HJR3, the resolution to amend the Indiana Constitution by defining marriage as between one man and one woman. The amendment would ban people with like genitalia from marrying or being legally joined in a manner that resembles marriage. The controversy has essentially been reduced to a dichotomy of those supporting and those opposing “homosexual rights.” However, the language of the resolution does not make direct reference to sexual activity.
Proponents posit contrasting positions -- consistent with this dichotomy – those being the correlating positions of those who are in favour of passing the resolution want to give Hoosiers the opportunity to vote on the measure[fn1] while those opposing it are said to oppose the opportunity for a citizen vote. Conversely, opponents posit their contrasting positions which are those in favour of passing the resolution oppose giving all Hoosiers the opportunity to wed while those opposing HJR3 are said to give homosexuals the opportunity to be full citizens. However, both of these positions fail to encapsulate the true nature of the constitutional argument and the opportunity for the will of the citizenry to be met.
Paramount to the will of the citizenry argument is the referendum portion of the constitutional amendment process. Of course we do not have democracy as our form of government but, instead, we have a republican form of government based upon democratic principles. The direct will of the people is filtered through the Madisonian form which places a high value on representatives. That is, the people elect a Congress [in this immediate case a state legislature] who in theory represents the interest of the populace in accordance with constitutional mandates and proscriptions or protections as they may be called. Calls for direct referenda have increased in recent years as legislatures seem to fall out of touch with the desires of individuals and align themselves more closely to special interest. Issues disposed to referendums are decided by popular vote and are therefore direct democracy. Modern technologies make referendums more feasible now than in the past which has, in part, led to greater acceptance. But this may be a threat to the very democratic republic which provides that opportunity. Eule discusses referendums further in Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990).
The Constitution reposes sovereign authority in the people. This is not blind authority to do as they will but to create the mechanisms of authority and retain control [elections] over the mechanisms and the characters in place. Judicial review is a mechanism by which the courts may invalidate decisions of the legislative or executive branches, subject only to the burdensome process of constitutional amendment. This is the crux of HJR3. Proponents state their objective is to take existing statute Indiana Code 31-11-1-1 and fix it in the Indiana Constitution which would bind the judiciary and future legislatures to the will of our current legislature and the majority of the voting populace at this time.
The United States Supreme Court in 1936 articulated the essentially mechanical process of judicial review where the Court wrote;
It is sometimes said that the court assumes a power to overrule or control the actions of the people's representatives. This is a misconception. [When] an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty, – to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.”[fn2]
Thus, the court is bound to apply the constitutional amendment as written when challenged by a statute that appears contradictory. This is to avoid having matters of significant importance decided along the prevailing political sentiments of the time. Current legislatures and citizens are forced then to conform to the wishes of the people, all of them dead, expressed many years ago. However, just as now, the past origination of and subsequent amendments to the Indiana Constitution were made at the behest of the majority – legislators elected by a majority, resolutions passed by a majority of legislators, and referendum passed by a majority of voters -- based upon the prevailing political sentiments of those times. A more detailed analysis of this concept is provided by Ackerman in Discovering the Constitution, 93 Yale L.J. 1013, 1023, 1049 (1984).
It may be considered an axiom that the binding force of the Constitution facilitates democratic self-governance rather than impedes it. It is precisely the guarantee of individual freedoms and the restraint on the ebbs and flows of popular will of the majority that preserves democratic liberty. Within the confines of judicial restraint there does however exist a model for flexibility and judicial activism to comport with the efficacy of constitutional law consistent with the position and will of man in the current times. That is the degree to which many of the U.S. Constitution's provisions are vague and ambiguous. Their interpretation as well as those of the many states does call for the exercise of discretion – judicial activism as it is sometimes put. It is these circumstances that the tension between judicial review and the democratic principles of self-governance become more acute. Two years prior to it's mechanistic analysis the U.S. Supreme Court had this to say about it's constitutional interpretation;
[i]t is no answer [to] insist that what the provision of the Constitution meant to the vision of [the framers'] day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, that statement carries its own refutation.[fn3]
From this perspective it appears plausible that the text of the Constitution suggest that the framers intended to delegate, to the people in the future, the power to make decisions about what the provisions means in the particular circumstances. What I mean by the people in the future here is the judges who are appointed after a vetting process consistent with the wishes of the elected representatives so selected to confirm the justices.
So in its application to HJR3 and the definition of marriage, or more succinctly to the prohibition of solemnizing relationships appearing similar to marriage, it could be said that the legislature crafting such language now intends for the people of the future to decide the definition of marriage. Likewise it is further argued that the future justices are not given a blank slate from which to draw their interpretation. “If the abstract statement is chosen as the appropriate mode or level of investigation into the original intention, then judges must make the substantive decisions of political morality not in place of judgments made by the 'Framers' but rather in service to those judgments.” Dworkin, The Forum of Principle, 56 N.Y. L. Rev. 469, 490 (1981).
In drafting HJR3 it is the purpose to withhold from judicial review and the future legislatures the ability to determine what constitutes marriage[fn4]. For their agenda they have chosen that it shall be between one man and one woman. This is consistent with a 1997 statute[fn5] that so defines marriage as between one man and one woman which was the prevailing mood of a different legislature. The amendment process requires that the matter go to the voters by referendum. The Indiana Family Institute opposes HJR3 because of the claim that it makes fathers optional[fn6] which is a valid complaint although I contend the more important matter is two parents rather than one. Where I come into greater disagreement is in the claim of the Indiana Family Institute that HJR3 will “giv[e] the people the freedom to decide the future of marriage in Indiana.”[fn7]
In light of the forgoing analysis HJR3 will have the opposite effect. A future legislature will not be able to redefine existing statute or create new statute to solemnize marriages or relationships so similarly situated to include anything other than one man and one woman. The future justices of courts will be bound to strike down any provision that grants liberties otherwise. While the justices may have the ability to determine the constituent parts of what amounts to a marital relationship they are still bound to grant it only to the union of one man and one woman.
By the very statements of those who drafted HJR3 and the numerous proponents of this legislation the purpose is not to give “the people the freedom to decide” but rather to take away the very freedom that the people currently retain to decide.
About the writer:
Stuart Showalter is an advisor to policy makers in Indiana's legislative, judicial and executive branches providing analysis and novel approaches in matters relating to child custody and general child well-being. He also coaches parents and attorneys in specific child custody cases and appears as an expert witness for child placement purposes.
 Article 16 of the Indiana Constitution provides the process for amending itself. For more about the process of amending the Indiana Constitution see ballotpedia.org/Article_16,_Indiana_Constitution
 United States v Butler, 297 U.S. 1 (1936)
 Home Building & Loan Association v Blaisdell, 290 U.S. 398, 442-443 (1934)
 2014 Indiana HB1153
 I.C. 31-11-1-1
 Ryan McCaan, Testimony on HJR3 before the House Judiciary Committee, 14 January 2014
 Curt Smith, Indiana Family Institute, letter to supporters 20 January 2014.
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