The Indiana Senate on Thursday declined to amend the current version of HJR 3, effectively ensuring that it return to a subsequent General Assembly before a possible move to voters. The Senate will take its final HJR 3 vote on Monday, but no amendments can be offered at that point.
After Thursday's Senate session adjourned, Senate President Pro Tem David Long, R-Fort Wayne, took reporters' questions. The following is an edited transcript, reflecting the general tone of the exchange:
Q: The second sentence of HJR3 is gone and not coming back?
A: That is correct. We'll have a vote on Monday, obviously, but it was the decision of our caucus not to call the amendments on the floor today.
Q: Did things go down as you wanted today?
A: It was my preference not to have the second sentence in there. For a lot of reasons, I'm not convinced it was necessary ... If we were starting the process over today, we would not have (the second sentence) in there. I'm convinced
that it really doesn't make a difference: The United States Supreme Court will make the decision on whether it's a state-by-state determination or whether the fourteenth amendment will rule that all marriage is the same.
Ultimately, if they go state by state, the single sentence going into the constitution will preserve traditional marriage in this state. That's really the issue. If it passes on Monday, it will have another passage in 2015 or 2014. It's a straightforward discussion on whether traditional marriage should be retained or if same-sex marriage is the same. That will be a decision I hope Hoosier people will get a chance to vote on. I think the second sentence was unnecessary, was a distraction and something that we are better off without in this entire discussion.
Q: What did you think of the prayer today?
[Editor's note: If audio of the inflammatory, inappropriate, political prayer that opened Thursday's session is obtained, we will post it here. Sorry not to have written it down, but this reporter (who is a Christian) was praying - up until the point the pastor went off the rails, then I was calling out to Jesus for a different reason.]
A: That was a surprise to me. We have protocol that nothing political is allowed to be said in a prayer. This pastor was asked by Pastor Barnes to be here today. I don't think Pastor Barnes knew that would be said. Sen. Schneider was up there only because the pastor was in Senator Schneider's district, but he didn't invite him or know that would be said.
We'll review our protocol again and make sure our pastors know, or anyone that gives a prayer knows, that this is not a political opportunity - it is simply an opportunity to give a prayer to the entire body. I already apologized to anyone offended by the fact that it was a political prayer.
Q: Do you think this should be debated in 2015 or 2016?
A: I do.
Q: What was said today in caucus?
A: We can't talk about caucus. It's our rule we don't discuss what goes in caucus...
Q: Based on your understanding of the situation .. do you think there is potential for someone to argue that, because the first sentence has passed two General Assemblies, the resolution is ready to go to voters this fall?
A: The language if you read the clause, (inserted when it was amended in the House) says it will be going to the next General Assembly. Theoretically, you could say this passed twice, but the fact is this has never been tested in the courts and we've had legal opinions and others from LSA and others that suggest you're playing with dynamite if you do that. Why would we send something to the voters that is constitutionally questionable? For all those reasons, this is the right thing to do to send it for another vote in the General Assembly. If it passes again, it will be before the voters in November 2016.
Q: Do you think it will pass Monday?
A: I think it will, but we haven't done any headcounts. We needed to get through today and everyone have their say in their caucus - and we did, we had a good discussion both on Tuesday and today. I work with a lot of very bright, passionate, thoughtful people. They are good public servants one and all. We'll have another discussion on Monday and we'll come down and vote.
Q: Why was there no debate today?
A: Well, if you don't call an amendment, then there is no debate on it.
Q: Why were no amendments called?
A: It was the decision of caucus not to call it and we honor our caucus decisions.
Q: A lot of supporters of HJR3 say it is meaningless without second sentence because it offers no protections against civil unions and the like...
A: I couldn't agree less. I think that is an argument to just get it to the voters in 2014. In reality, I think the issue will be before the U.S. Supreme Court and it will say it's a states' rights issue, up to each state to decide for itself or it will be decided by the Supreme Court that it is a violation of the fourteenth amendment. One way or the other they will have the final say because the U.S. Constitution trumps the state constitution. If they decide it's a state-by-state issue, if this goes to the people in 2016, they'll have the final say and I think that's appropriate.
Q: Did yesterday's ruling in Kentucky weigh on this?
A: We discussed it. I'm not sure if it changed opinions or not in the end, but it was certainly a relevant discussion to emphasize that, again, in the end, this whole bucket of state constitutional amendments and laws will be before the Supreme Court and they'll have the final say on it.
Q: Any bills you'd hoped to get to that you haven't had time to address?
A: There's not a single bill we haven't had time to discuss. If you look at what we are dealing with now, we actually sent more bills to the House than they sent to us. It's not been a distraction for us. It's been getting the lion's share of attention, but in the mean time our committees are meeting full time regularly and moving bills through.
Q: Why wait until now to announce your opposition to the second sentence?
A: As leader of the Senate, I wanted to respect my caucus ... I didn't think it was appropriate for me to speak out until I told them what I thought and we talked it out. That's how I usually operate and it's consistent with how I"ve handled myself in the past.
Q: Did the General Assembly decide to wait to take action until the court makes a decision?
A: I think our process has to go forward in a way we think appropriate. We should not operate depending on what we think the courts may or may not do, although I think, in the end, it is obvious that, with all the challenges in the lower courts, the Supreme Court is going to have to speak out. They have done it once already last year with the Defense of Marriage Act case where there was theoretically a tilt toward federalism .. although if you read Justice Alito's comments, he said it wasn't quite definitive enough ... he is very strongly a state's rights person. But if you would argue that they upheld the right of New York to decide whether they wanted to have same-sex marriage or not - which they decided in favor of - [justices] said the Defense of Marriage Act could not trump it. In that sense, it was a state's right decision, but it was a little tepid, so no one's quite sure what will happen out there, but in the end they will have the final say.
... I think we're looking at the momentum and the number of challenges ... In the mean time, the states have to do what they have to do. ... My preference would be that the Supreme Court would rule with states' rights because that's what I believe in... that's the way I look at the U.S. Constitution, I believe in states' rights.
Q: When you balance state's rights with equal protection, how much stock do you place on this as an equality issue?
A: I personally think the fourteenth amendment has been modified through the years, it has evolved in ways that some of us with us would agree with and some of us would disagree with. I think civil rights has been an important evolution of the fourteenth amendment - and I do believe in that. But, in this case, I think this is one where a state-by-state decision fits. I think marriage has traditionally been a state decision ... states all ought to be able to speak for themselves on the issue. That's what I think is the right decision.
Q: So does that mean? In Indiana it's not an equality issue, it's a definition in Indiana - an attempt to protect tradition?
A: I think we, in the end in Indiana, we let the people decide on that, OK? ... In Indiana it is tough to amend the constitution, as it should be: two separate votes of the General Assembly and then on to the voters. On this issue, it's taken us well over a decade - and it's going to take us a little while longer now. I'm not troubled by that. I think what we propose to put in the constitution ought to be clean, simple and straightforward and an up-or-down vote by the people. I think, in its current form, HJR 3 is a better way to do it. I think it is a simple discussion and we'll see what the people have to say assuming that it will get to them in 2016. That's for others to say right now. We've obviously stopped the clock on this in an appropriate way. We'll see what happens on Monday. If it moves forward, the clock starts again.
Q: Is this a defeat for the governor?
A: The governor does not have a say in this. He was pressured to say something ... but this is a legislative decision. I know he understands that. It's not on the governor's agenda. It's not a win or loss for him. This started long before Mike Pence was governor and hopefully be finished before he is done.
Q: Has this sucked the oxygen out of the room?
A: I don't think so. Hopefully we're going to be able to discuss the other issues: the tax cuts, we're taking transportation money, we're talking about early childhood education ... HB 1006, which is sentencing reform - all very important issues we'll focus on and are focusing on in our committees. We're doing our business. As you know, we've a had a lot of controversial issues we've had to deal with in the past. We've managed to get our business done then and we're continuing to do that this year. I think the attention will draw to these other issues once and for all after Monday.
Q: Will the resolution definitely be called on Monday?
Q: Is there any way the second sentence can come back?
A: No, at this point it's either up or down.
Q: So you guys divorced yourself from the second sentence. Is that a fair headline to write?
A: Abdul, you're so clever.
Q: Why were there no amendments?
A: Our caucus decided that was the approach we wanted to take.
Q: Can we assume that if it had been called, it would have been defeated?
A: ... I'm not going to speculate on the outcome.