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Constitutional amendments and companion bills: What to make of House Bill 1153?
Posted in Litigation

Can the legislature prospectively define, by statute, the meaning of an amendment to the Indiana Constitution? That’s the question when it comes to House Bill 1153—a bill being considered as a companion to House Joint Resolution 3, the proposed constitutional ban on same-sex marriage. The answer is probably not.

Can the legislature prospectively define, by statute, the meaning of an amendment to the Indiana Constitution? That’s the question when it comes to House Bill 1153—a bill being considered as a companion to House Joint Resolution 3, the proposed constitutional ban on same-sex marriage. The answer is probably not.

The proposed constitutional amendment and HB 1153

The proposed amendment in HJR-3 contains two sentences. The first largely mirrors Indiana’s existing ban on same-sex marriage.  The second states: “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” No Indiana court has addressed the meaning of this language. And some opponents of HJR-3 have argued that it could eliminate employers’ ability to extend benefits to their employees’ same-sex partners.

Enter House Bill 1153.

Proponents argue that it clarifies the legislature’s intent not to affect employee relations. The bill itself states it is not the intent of HJR-3 to prohibit “the extension of employment benefits by private sector employers, political subdivisions of the state, or state educational institutions to any beneficiary designated by an employed individual.” 

Problem solved, right? Not really.

The role of intent in constitutional interpretation

The scenario isn’t difficult to imagine. HJR-3 is adopted by statewide election. Shortly after, a lawsuit is filed to determine whether an employer may continue offering health benefits to same-sex partners. What does the court do? 

When it comes to constitutional interpretation, the Indiana Supreme Court describes the process this way: “[T]his Court looks to the common understandings of both those who framed it and those who ratified it.”  But figuring out that “common understanding” is more of a challenge that one might expect—especially when it comes to constitutional amendments. 

Before an amendment goes into effect, it must: 

(1) be approved in one General Assembly; 

(2) be approved in the next-elected General Assembly; and 

(3) be ratified by a majority of voters in a general election.  

So, a court discerning the “common understanding” of an amendment has to sort out the intent of two separate groups of framers as well as the voters who ratified it.

The intent of those who “frame” the amendment

It’s safe to say a court would accept HB 1153 as describing the intent of a particular group of “framers”—the 118th General Assembly. But it’s far from certain that the intent in HB 1153 would be attributed to the 117th General Assembly, which took up the amendment in 2011. The reason is simple: the circumstances under which each body has addressed the issue are different.

As of 2011, the Michigan Supreme Court had already decided that language similar to HJR-3 (concerning “similar union[s]” to marriage) barred public employers from providing insurance benefits to employees’ same-sex partners.  It’s not difficult to imagine that the 117th General Assembly had that ruling in mind when it approved HJR-3. And a court would not be required to choose the 118th General Assembly’s viewpoint over that of the 117th General Assembly, if the court decides the latter had something different in mind. 

The intent of those who “ratify” the amendment

That leaves the intent of the voters, and this is where the issue gets complicated. If HJR-3 is on the ballot, voters will not be asked to adopt or reject the language in HB 1153. Voters will be presented the two sentences of the proposed constitutional amendment, and a single question: Yes or no? 

Some who vote “yes” might think HB 1153 is a good idea, and assume it will apply. Others might oppose HB 1153, but vote “yes” thinking the amendment itself is the only language that matters. Or, the “yes” voter might not know HB 1153 even exists. What then?

Conclusion

Most likely, the court in our hypothetical case will resort to the default setting for constitutional interpretation—largely ignoring HB 1153 and focusing on the literal text of the amendment. As the Indiana Supreme Court has explained, “The actual language … is particularly valuable because it tells us how the voters who approved the Constitution understood it, whatever the expressed intent of the framers in debates or other clues.”  If a court thinks HB 1153 is consistent with the text of the amendment, it would likely apply the current legislature’s stated intentions. But a court that thinks HB 1153 is inconsistent with the literal text is just as likely to disregard it. 

Ultimately, the question for the legislature is whether it’s comfortable with the literal text of HJR-3—divorced from the statements in HB 1153—because HB 1153 is likely to have little value in determining the amendment’s scope.

Sources

1. See Ind. Code § 31-11-1-1 (“(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.”). In 2005, that statute withstood a challenge under the existing language of the Indiana Constitution. Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct. App. 2005) (addressing subsection (a) of the statute).

2. Snyder v. King, 958 N.E.2d 764, 772 (Ind. 2011).

3. Ind. Const. Art. 16, § 1.

4. Nat’l Pride at Work, Inc. v. Governor of Mich., 748 N.W.2d 524 (Mich. 2008).

5. FGS Enters. v. Shimala, 625 N.E.2d 1226, 1229 (Ind. 1993).

6. Bonner v. Daniels, 907 N.E.2d 516, 519-520 (Ind. 2009).

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