He said that, as someone committed to the welfare of children and traditional heterosexual marriages, he supported a constitutional amendment refusing to recognize other familial arrangements as deserving of the same rights.
Funny ... last time NUVO asked Smith to talk about family welfare he refused to say a word. Maybe because he didn't feel comfortable with the question about what he was doing with the six-figure checks he was receiving from the state.
Committee members neglected to ask Smith why his organization took $1 million in taxpayer money in the form of a Medicaid waiver grant from the Indiana Department of Child Services, promising to conduct public outreach and education about healthy families but then failing to account to the media for how he spent the money — despite the fact that his grant agreement specified that the recipient communicate with the media about its activities. Even after NUVO's cover story, which ran Feb. 23, 2012, no public official — neither the DCS nor the legislature — followed up with a public investigation or explanation. (The Society of Professional Journalists Indiana Pro Chapter did, however, award it the top investigative story in its circulation class that year.)
Elections Chair Milo Smith, R-Columbus, remained, for the most part engaged with the witnesses at Wednesday's hearing of the House Elections and Apportionments Committee. Republican committee members asked perhaps one question during the entire meeting (which lasted from 3:30 p.m. until past 8 p.m.). Unlike the three representatives that voted against the bill, none of the nine who voted "do pass" offered any defense of their positions, though Casey Cox, R-Fort Wayne, reserved the right to switch his position.
Possibly, during HJR 3 hearings in the upper chamber, senators can explore how the "family values" lobby splintered long-term friendships in the legislature by celebrating in its newsletter after defeating a Senate anti-bullying bill that would have extended protections to gay victims.
When HJR 3 hit the House Floor Monday evening, 52 representatives — 23 Republicans and 29 Democrats — voted to amend HJR 3 to strip the resolution's second sentence: "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized."
Rep. Jerry Torr, R-Carmel, said after the vote: "With so much confusion and difference of opinion on what the second sentence means ... it's prudent to take it out." The House sent the bill to the Senate Tuesday after a 57-40 third-reading vote.
On to the upper chamber
The Senate is now preparing for a crack at the biggest legislative nut of the season.
As one Freedom Indiana lobbyist told NUVO photographer Mark A. Lee, "We still have to look out for snakes." Senators could opt to kill the bill (unlikely) or pass the amended bill as it is, which would re-start the amendment process, delaying the voter referendum until at least 2016 (to the next gubernatorial election, when overall turnout will be higher than in mid-term elections).
Or senators could move to put the second sentence back in and, if Rep. Turner does not object, the final resolution would face just one more up-or-down vote in the House before proceeding to the voters this fall.
Rep. Pat Bauer, D-South Bend, said he could imagine a scenario in which leadership would try to argue that, even with just the first sentence passing, the resolution still deserves a spot on November's ballot. That sentence was in the version that passed in 2011 as well. The State Supreme Court has supported unprecedented moves by legislators before, he added, by allowing the end of a 150-year tradition when it permitted the legislature to break its quorum rules. Republicans also have a governor who doesn't want this issue to muddy the waters when he is campaigning for re-election in 2016, Bauer said.
HJR 3's path is unusual on many fronts, Bauer continued, citing the "unprecedented [tactic] to move to it to a different committee" (aside from Ways and Means, which at times conducts extra hearings to explore a bill's fiscal impact) and the "strange strategy" of using a bill to explain the second sentence of an amendment. "A bill compared to an amendment holds no water," he said.
Others on the Democratic side called Monday's vote "a temporary victory," bemoaning the fact that legislators are even considering support of a move to insert the one-man, one-woman marriage definition in the Indiana Constitution.
Correlation does not causation make
When Rep. Eric Turner, R-Cicero, the bill's author, opened Wednesday's testimony, he trotted out figures on the economic situation of states that have adopted constitutional amendments on gay marriage, gunning for a round of statistical razzle dazzle:
• Eight of nine states with the top job growth all had amendments defining marriage.
• The only states to outpace Indiana's job growth all have constitutional amendments defining marriage as one man, one woman.
• Per capita income four of the five fastest-growing states had constitutional amendments.
• A new CNBC study found nine of the top 10 business-friendly states have marriage protection amendments in their constitutions.
Turner did not disclose whether the states he mentioned had more inviting tax policies, warmer climates or the added scenic drama of oceans or mountains. In short, he proved that there was some correlation between states' policies on marriage definitions and positive economic outlook, but not that a hetero-centric definition caused a better business environment.
On the flipside, local business leaders from Cummins Inc., Lilly & Co., and Indiana University all testified about how policies widely perceived as homophobic are actually causing detrimental economic consequences for their businesses and the quality of the Indiana workforce.
"Your vote today against HJR 3 can spare Indiana from costly, divisive and distracting debate," Marya Rose, Cummins' vice president and chief administrative officer, said. Minnesota had a referendum with "vicious" advertising, "$17 million that could have been focused on critical issues of Minnesota," she added.
Both Cummins and Lilly testified to losing employees because of the state's advancement of one-man-one woman policies.
Steve Fry, Eli Lilly's senior vice president of human resources and diversity, described the loss of a talented senior executive in Lilly's innovation department.
"We cannot afford to lose people like this," he said. "Last year we had someone leave Indiana (for a place) that they deemed more welcoming – unfortunately, they're now working for competitor out East. Trying to recruit talent ... they don't want their children to live through [the] public campaign that will certainly follow [into the election]. It matters little what voters do ... the damage will be done by the time the vote comes around."
The measure will not be an economic benefit, another local business leader testified.
"HJR 3 does not meet the standard of helping the state attract, recruit or train talented workers," said John Thompson, chair of the Indy Chamber board of directors. "It does not enhance economic development."
In response to testimony that Nevada, Hawaii and Colorado — states with marriage ammendements — are forecasting job growth twice that of Indiana, Thompson said, "They passed their amendments in '06 and earlier [and], in every one of those three states, they found the language of amendment to be very problematic. In every case, they've rewritten legislation and laws to help clarify so that it would protect rights and economic benefits for the citizens in their states."
A mistruth repeated often
Turner continued with another dubious assertion: that HJR 3 "does not take away any employer's rights to provide health benefits to their employees or whoever they want, (it) doesn't take away the rights of the City of Indianapolis or any other local government to provide equal opportunities to whoever they want."
Jackie Simmons, Indiana University's vice president and general counsel, said she spoke with legal counsel at the University of Kentucky who said that the work-around rule Kentucky universities had to devise to offer same-sex couples benefits (despite the state's gay marriage ban) ends up costing taxpayers more. The rule casts a wider net, including all "sponsored adults;" anyone who can prove they've been living with an insured person for 12 months. By contrast, at I.U., a local employer of 40,400, same-sex partners currently have to certify that they are in exclusive committed relationships, that they'd be married if possible, that they own or lease houses together or are significantly intertwined in some other businesses.
"The language in the proposed amendment is flawed and creates ambiguities that none of us ... should welcome," Simmons said, adding that passing a constitutional amendment is not like passing a law — that mistakes can't be fixed in clean-up bills by later legislatures.
"If we are to amend our constitution, don't we owe it to the voter to do it right?" she asked.
Wisconsin has a constitutional amendment identical to HJR 3, plus the explanatory language held in HB 1153. A Wisconsin court is currently deciding whether language such as that included in HB 1153 would protect the rights of local businesses to provide benefits to same-sex couples. The amendment without additional language forced Kentucky to devise the "sponsored adult" work around because the university would otherwise be liable for recognizing same-sex relationships as marriage, an act forbidden in their constitutional amendment — as would Indiana's, if the second sentence is added back to HJR 3. Proponents of HJR 3 continue to assert that Kentucky's marriage amendment did not interfere with domestic partner benefits, refusing to acknowledge that it forced a costly workaround.
Many states have grappled with court challenges when it comes to voter referendums, justice and the definition of marriage.
Turner outlined some stats on the legal picture, underscoring one of the underlying fears driving proponents to push this legislation — the fear that "activist courts" will force people to accept relationships they personally feel are improper:
• Twenty-nine states operate under constitutional amendments defining marriage; with the exception of Illinois, every state around Indiana does. (The last constitutional amendments passed were adopted in 2006.)
• Four states, including Indiana, have statutes defining marriage as one man/one woman.
• Nineteen percent of the U.S. population has had courts redefine marriage to include same-sex couples. "Indiana is one of those states at risk because we only have a statute and not a constitutional amendment," Turner said, despite the fact that the Marion County Superior Court in 2003 upheld Indiana law's existing hetero-centric definition of marriage.
• Thirty-five states have allowed voters to decide the issue and seven states have overturned their amendment defining marriage.
Others say the so-called activist judges are merely insisting upon equal protection under the law and separation of church and state.
Ultimately, Turner said, Indiana has defined marriage as between a man and woman "for a long time and there are plenty of us that want to keep it that way."
The fear factor
From a social studies standpoint, the pools of support and opposition make for an interesting case study, especially considering the weight alloted to each side on lawmakers' scales of justice. The proponents can be broken down into a few categories: the professional "family values" lobby, including Curt Smith and his associates on the state and national levels (aka the people whose political ads will foment homophobia across the state for months ahead of the election); the academics who insist society would be better off if our policies fostered more nuclear, heterosexual families and the Christian contingent that argues the same point from a religious perspective; the woman who described herself as a former lesbian blessed to have escaped the lifestyle; and the guy who talked about the only fundamental American rights worth protecting were those recognized at the founding of the country as essential to "Anglo-American" freedom.
Just over a dozen people signed up to testify in favor of the bill. Good government policy, many argued, should advocate for heterosexual marriage so that citizens will reproduce and work together to raise their children in two-parent households.
The marriage license "legally attaches husband and wife together and increases the chances [their children] will be raised with their mother and father," said Kellie Fiedorek, litigation staff counsel with Alliance Defending Freedom, a D.C. law firm that specializes in traveling the country to advocate for heterosexual framing of families — and against equal protections for all couples who consider themselves to be married.
Ken Klukowski, a law professor at Liberty University, said society was engaged in a debate between the conjugal view of marriage that centers on the biological reproductive act exclusive to men and women, while the other view (which, he said started when divorce began to be more common in society) holds that "marriage laws should be about personal happiness, emotional gratification ..."
Local "family values" activists tried to flip the script on opponents.
"Much has been said that qualifies as a scare tactic," said Micah Clark, executive director at American Family Association of Indiana. He suggesting "nothing bad" will happen if voters pursue HJR 3. At a press conference on Monday morning, Clark again repeated this assertion and said he didn't believe children were currently being hurt by the state's limited definition of marriage (despite testimony to the contrary) and he didn't believe the testimony of Cummins, Lilly and IU that Indiana's pursuit of homophobic policy had already had economic impacts in terms of lost talent.
"We're not the ones making this controversial," Clark said.
Smith and Clark insisted issue advertising funded by their groups would not be harmful to children of same-sex couples. But of the two commercials posted by the "family values" lobby this season, both rely on fomenting fear that it is hetero-centric Christians' liberties that are most threatened by the HJR 3 discussion — that Hoosiers voters are somehow being denied a basic, fundamental right. There's no mention of the thousands of Hoosiers who are decrying the second-class citizenship to which this state's marriage policies subjects them.
"This proposed constitutional amendment ... is indeed important to every Hoosier, so important that every citizen should have the opportunity to vote for HJR 3," Eric Miller, founder and Advance America, told the Elections Committee. "There's no question if it passes without amendment, the people will be able to make an informed decision."
Advance America later tweaked that message on its homepage: "The 2014 General Assembly must pass the Marriage Protection Amendment HJR 3 — as is — so the citizens can vote on November 4, 2014 to stop homosexual marriages!"
But that's a fantasyland pursuit, many opponents said. Voters cannot stop homosexual marriage, they can only stop partners who see themselves as married from equal protection under the law (though it does keep the fear mongers employed in full-time lobbying jobs).
One of Advance America's television spots:
Compassion for the cancer patient
or the cop?
Here in Indiana, thousands of Hoosier couples consider themselves to be married and are rearing families despite what state lawmakers or homophobic voters say. Many of them traveled to the Statehouse to testify about how the state's handling of gay marriage issues has harmed them and others they know.
Evansville Police Sergeant Karen Vaughn-Kajmowicz testified that when a dying colleague of hers tried to pass her pension benefits on to her partner, she was not allowed to. Only by agitating for a rule change was she even allowed to withdraw the principle investment she'd paid in — denied the interest benefits extended to other officers. And, with respect to her own lesbian relationship, Vaughn-Kajmowicz discussed the heartache of having a tumor treated with the specter of an unfinished adoption process hanging, not being certain that, if she died, her partner would be able to rear their then 6-month-old son.
She told lawmakers she feared how an onslaught of ugly advertising would affect her son at school.
"No matter what happens with HJR 3, please don't make my life worse," she said.
Hoosier Carol Trexler testified that four years ago, when she was diagnosed with incurable lung cancer, she and her partner, Donna, "recognized how hard it is to be a same-sex couple in Indiana."
Despite a pile of documents meant to formalize and explain their partnership, doctors refused to allow her partner to pick up Trexler's medical records.
Donna could not take medical leave to care for Trexler.
"Each stumbling block caused additional stress in a stressful situation," Trexler said.
"Some people feel it's OK to discriminate just because they don't understand or approve. As I look to the future, sadly, I think about end-of-life issues. I want to be sure that Donna is with me at end and has the same rights as surviving spouse without having her rights questioned or dismissed. I don't want it to happen in Donna or anyone else in Indiana. We want [the] same protections as [our] married neighbors.
"I drove here today from [the] hospital where I received chemo this morning. It is that important to me. If you vote down this amendment, nothing will change: Marriage is still defined under state law. But if you move it forward, you're telling people like me that they have no protection – you will deliberately see me as less than I am."
Trexler asked lawmakers to "think wisely and carefully about what you are legislating." As she concluded her testimony, she quoted poet Robert Frost: "In building a fence, we do know what we are walling in. We don't know what we are walling out."
The Episcopalian Diocese outlined its position through Bishop Cate Maples Waynick, who said: "Same-gender couples contribute to communities and we should grant them status to care for each other in sickness and health, (entitled to) benefits and inherence rights. Quality education, meaningful work and world-class public transit ... in these efforts, God will surely bless us. You are in our prayers."
Young Republicans, young Hoosiers
Jesse Hawk, a young man reared on farm outside of Warsaw, told lawmakers he is "a Hoosier by birth and choice." HJR 3, he said, "has me terrified to be a Hoosier." Both he and his partner have significant medical issues and he worries how the state's marriage laws will affect them as they go through treatment.
"I'm a Hoosier by birth, but you have me questioning whether I can be a Hoosier by choice."
Many other young people from around the state registered their testimony — several of them Republicans.
Justin Kingsolver, a University of Michigan Law School student, who was once the Indiana College Republicans president, said HJR 3 "is bad public policy – it replicates existing law and enshrines discrimination in our constitution."
Kingsolver added, "It is already hard enough to come out in Indiana. I know ... as a closeted 17 year old, I was already being bullied ... [HJR 3 is] a fight that will hurt the most vulnerable among us.
"My fellow Republicans ... I implore you to reconsider."
Another student who studied the history of Indiana's constitutional amendments noted a shift in the amendments from structural changes to substantive changes pertaining to policy. He called "troublesome" the trend toward using amendments to enact specific public policy. He suggested the older generation was attempting to foist its views onto his generation, insulating their policies from the legislative process.
Lindsay Quandt was a House Republican intern, who worked for many people now holding the fate of HJR 3 in their hands. Elections Committee member Rep. Jeffrey Thompson, R-Lizton, was one of Quandt's high school teachers.
"I respect this place and the work; I've spent my entire life respecting this process over politics," Quandt said. "But today feels a lot like politics."
Republicans believe in small government, she added, "and that includes determining who we have the right to marry. It's not our place and it's not our job."
She warned lawmakers that the technology of political polling "hasn't quite caught up" with her generation.
"You want to know the pulse of young people in the Republican Party in your districts?" she asked. "Here we are."
Risking expulsion for making gestures in the observers' gallery, a sea of red shirts waved at the committee.
Olivia Reece, "a 22 year-old-born Hoosier and proud Christian from Greentown" said religious definitions of marriage "should be happening in churches, not in a government buildings; whether you agree or not, follow up with your God."
And Amy Brown of Montgomery County, where "homophobia is as common as corn fields," asked: "Are you going to be comfortable if your child doesn't feel welcome or moves away because they are gay?"
Another said: "This state is my home, I'd hate to have to leave ... (it's) where my family and friends are ... the state that my family has called home for over 150 years may require me to leave just so I can call myself an equal."
It all comes down to equality
Richard Waples, a local attorney specializing in constitutional law advised: "Our public policy should be one of inclusion, not exclusion; one of acceptance in love, not rejection and exclusion. We don't put fundamental rights up for popular vote. This body a number of times has rejected referendums..."
If this amendment goes to the voters and Indiana is treated to an acrimonious debate that ends in its passage, lawmakers will be "hamstringing future General Assemblies from recognizing same-sex relationships," Waples said.
A Bosma constituent, Henry Fernandez, described himself as a "civically engaged resident" of the speaker's district, who is raising twins with his same-sex partner.
"When we moved into the neighborhood, divorce rates did not go up, neighbors did not move out, property values did not drop, juvenile delinquency did not rise," Fernandez said.
"Our family is not a legal, financial or personal threat to our neighborhood.
"A family's love should not be subjected to a legislative vote or a statewide referendum."