Wednesday, March 28, 2007

Bork Bombshell: Amendment's Language "Poorly Drafted"

The evolution of the Federal Marriage Amendment in Congress is very illuminating to the current debate here in Indiana over the controversial second paragraph of SJR-7. As Don Sherfick related to members of the House Rules and Procedures Committee last week, the second paragraph of the original version of the FMA (upon which SJR-7 is based) was amended due to concerns it would deny the legislature discretion to legislate in the area of civil unions and other benefits for unmarried couples. As it turns out, nobody was more concerned about the language in the second paragraph than one of its principal draftsmen, Judge Robert Bork. During testimony before the House Judiciary Committee on May 13, 2004, Bork described the second paragraph as being "poorly drafted" and causing "needless controversy". At his urging, the FMA was amended to make it clear the legislature had the right to legislate these rights. Bork told the Committee:

Objections to this second sentence have convinced me that it is poorly drafted and causes needless controversy. Critics say that, read literally, the sentence would forbid courts to implement legislatively-enacted civil unions. That was not the intent. It was hoped that this objection could be avoided by making the intention of the sentence clear in the debates that would surround the amendment in Congress and, if sent to the states, in the ratification debates. It was thought, moreover, that the word ‘‘construed’’ would indicate that the sentence was intended merely to restrain activists courts from requiring civil unions against the desires of the legislature involved.

There is no point in debating this matter when altering the language of the second sentence can make the point clear. For that reason, I recommend the version of the second sentence contained in Senate Joint Resolution 30: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." There is no doubt whatever, that this sentence leaves legislatures free to provide for civil unions if they wish. Thus, Vermont, which now has civil union legislation enacted under the coercion of its supreme court, would be free either to retain or repeal that legislation. The Senate language makes absolutely clear what was intended in the House version of the Federal Marriage Amendment.

So the gig is up. Either Senator Brandt Hershman (R-Wheatfield) and the proponents of SJR-7 inadvertently copied the wrong version of the FMA making it applicable to "any state law", as well as the constitution, or they deliberately chose this version knowing full well it indeed does more than what they are telling Indiana lawmakers and the public. There's no mistaking the extent to which Bork's comments back in 2004 are now haunting SJR-7's proponents. Bork, who was no activist judge when he served on the federal Court of Appeals, was rejected by the U.S. Senate because of his adherence to a very strict interpretation of our U.S. Constitution. The proponents can't simply dismiss his comments about the second paragraph as "politics" as they have done other opponents of the amendment.

I should add that, even with the removal of the "any state law" language, there remains considerable confusion surrounding the term "legal incidents of marriage". As Professor Aviva Orenstein testified last week, there is no clear definition of what the term means based upon case law here or elsewhere.

A big hat tip to Ed Fox for tracking down Judge Bork's testimony before the House Judiciary Committee.


Wilson46201 said...

Lest it be forgotten: Bork gained fame for his shameful role in Nixon's "Saturday Night Massacre" to obstruct justice. He did the dirty deed that two more honorable men refused to do...

When a major, card-carrying member of the dark side of the conservative movement opposes something as being harmful to the cause, Hoosier wannabee reactionaries should listen carefully. They might learn something about being more effective in their wicked, wicked ways...

Don Sherfick said...

What a find! I was aware from my own reserach that Bork was a part of the same team (I believe they were referred to as "The Arlington Group") as Law Professor Gerald V. Bradley of Notre Dame, who Senator Hershman touted before the Indiana Senate as having helped write BOTH the FMA and SJR-7. Around that time the Washington Post reported that there was internal discord both as to what the FMA ought to do and the language to do it. But I had not come across the Bork testimony itself, and Ed Fox has made a huge find! Wish I could go back in time and amend my opening statement before the Rules Committee, but we all can do the next best thing.

Anonymous said...

Watch Jim Bopp run! HahHah!

Anonymous said...

The Bork name makes my skin crawl.

Thank Heaven he is not one of the Supremes. A brilliant man, no doubt. But ideologically lock-step.

We have Clarence Thomas for that. Not the brilliant part (no one would EVER accuse him of being brilliant). But he is lock-step.

10001110101 said...

Here is the source of Hershman's Arlington Group

EXCERPTS: from CHAPTER 6 of Dan Gilgoff's "The Jesus Machine"


Edward Fox said...

It is true that no one can give a definitive list of "the incidents of marriage" until the courts hash out what they think it is. If SJR7 becomes Section 37 of the Indiana Bill of Rights, judges will have the last word. No legislature will be able to come after and clean up the mess. That would take another amendment. But there are some places to look. We could look in statute and case law for rights and responsibilities that are exclusively or nonexclusively related to marriage. Learned people can opine. I suggest that a very compelling list comes from the hand of the congressional author of the text: Marilyn Musgrave. She drew up a list of rights and duties that she wanted the amendment to deny to unmarried couples (read gays and lesbians).

Here it is (I will post five at a time to allow for a little discussion where I think it useful. The numbered paragraphs are from Musgrave's list, my comments are in square brackets.)

1. Rights and duties relating title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety.

[Nothing religious here. She wants to make sure that the excluded group be treated as strangers when one dies after a life lived together as a couple.]

2. Rights and duties relating to causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, dramshop or other torts or actions under contracts reciting, related to, or dependent upon a spousal status;

[If you do not meet her sectarian approval, you cannot claim a loss of your life partner. The law must regard you as strangers. That is the wages of sin in the New Jerusalem.]

3. Rights and duties under probate law and procedure, including nonprobate transfer;

[Anything to make your partner's life as difficult as possible after your death. If possible, it would be nice to grab your inheritance, or at least, consume it in legal fees.]

4. Rights and duties under adoption law and procedure;

[That is clear enough. No adoption for people who are not married. This will affect very many people but there are, to my certain knowledge, scores, and probably hundreds of Hoosier kids that this provision will send back into the system--foster care or institutions--by denying GLBT folk the right to adopt.]

5. Rights and duties relating to group insurance for public and/or private employees;

[Clearly the author--the one responsible for the creation--of the text that is before the House Committee on Rules and Legislative procedures had no doubt about whether this amendment would affect domestic partner benefits, or any benefit that could be denied a couple because they did not meet her approval on religious grounds.]

Brent Hershman had to know where the text came from. It is unlikely, with his devotion to the subject, that he never heard of this list. As we have established, he had to know that the text he is insisting on is likely to have the effect that he denies daily. And therefore he had to know that it clearly puts domestic partner benefits for state employees, IU professors e.g., at risk. Perhaps there is a third possibility, but I can only see: either he is not very bright, or he is trying to deceive the legislature and the people of Indiana. More to come.

Advance Indiana said...

That list would be likely suspects for anyone challenged to define the term, Ed. Thanks for sharing that additional information. The Bork testimony has made its way into the hands of key lawmakers in the House. Let's see what they do with it. Hopefully, they will call Hershman, Bopp and company to the carpet. The efforts by the proponents to deceive Indiana lawmakers on this point is an outrage.

Edward Fox said...

Items from United States Congresswoman Marilyn Musgrave's list of "Incidents of Marriage" that accompanied her submission of the marriage amendment that is the source of the one we are battling.

As I promised, there is more:

6. Rights under a state spouse abuse program;

[Oh my! Once again Hershman seems to be misleading the public and the legislature. The text he espouses was intended to deny unmarried persons protection against domestic violence. One of his supporters, Representative Cindy Noe was asked about how this would affect even straight couples who were not married--unmarried couples account for 50% of the actions for domestic violence in Indiana--and she replied that if they wanted protection, they could get married. If you want protection from the creep who beat you bloody, you should marry him. That is her solution. Hershman claims that the text was not intended to affect domestic violence protections; he knew it was.]

7. Rights relating to prohibitions against discrimination based on marital status;

[It is hard to see where this one is going. If a person is not married, they obviously cannot be discriminated against because they are married. Does it mean that they can be discriminated against because they are not married? So a person is not married because Hershman, Bosma & co. made it unconstitutional for them to marry. And they want it to be legal to discriminate against them because they are not married? This seems to pass all understanding of bigoted reading of the Bible and to descent into the most vulgar meanness imaginable.]

8. Rights relating to victim's compensation;

[Piling on.]

9. Rights relating to worker's compensation benefits;

[I suppose this means rights appropriate for a spouse of a victim.]

10. Rights under laws relating to emergency and non emergency medical care and treatment, and hospital visitation and notification;

[It is important, so it would seem, that persons who do not meet the religious standards of the chosen should suffer as much as possible--perhaps the chosen are not so sure about GLBT folk going to hell and want to make sure they suffer here on earth, just in case they really got it wrong and God doesn't punish gays after all. Again this one is not clear. Could it be used to deny medical care to GLBT folk? That is not as far fetched as you might think. Transgender people are often denied medical treatment because their being offends some health care workers and I have heard a story of a lesbian who was thrown out of a doctor's office in southern Indiana a couple of years ago even though she was bleeding. Clearly this item makes clear that second class citizens should not be able to visit their loved ones, make medical decisions for them or their children. The patient, perhaps a small child, will suffer alone to satisfy Senator Hershman and Eric Miller. Family values my eye; they are bent on destroying families to satisfy their pride. There is no imaginable economic reason for this; it is pure vindictiveness. What is it that gets these people going? Where does all this hatred come from? There is no group of Americans who is singled out for treatment this way.]

Still more to come. There are more than a thousand federal rights and responsibilities that relate to marriage. There are certainly scores, probably hundreds in Indiana. Many of them are technical or perhaps, minor; but they add up. This list includes large headings that encompass many of those rights and responsibilities and a number of frightening intentions. It is frightening that there are among us people who would intentionally do such things to anyone, let alone a whole group of fellow citizens who have done nothing to warrant this abuse.

Anonymous said...

1) Hershman is not very bright, but he is devious when it come to making sure his party stays in power.

2) He has every intention of doing a bait-and switch as so many have pointed out he has tried it already.

3) The ground keeps shifting. Now it's "let the people vote". But on what? Shaky ambiguous language that will keep lawyers employed for years?

4) Has anyone seen ANY newspaper in Indiana editorialize in FAVE of SJR7? Have any companies of Lilly or Cummins' stature come out in favor of it? Just wondered if I missed something.

Anonymous said...

Sorry, AI. I have read your posting three times now and still do not get your point. According to the clip that you posted, Bork is RECOMMENDING the language that is similar to SJR007. And one of the reasons for that recommendation is that it will allow state legislatures to consider their own civil union laws. So far, that seems to me like something you'd support (notwithstanding the marriage definition, of course).

But then you say Hershman chose the wrong language. Huh? And what is your point about SJR007 proponents rejecting Bork's comments? I don't see any reason that they would.

I just don't follow your logic on this one. It certainly is no "bombshell." Nor is there anything in your post indicating that Bork considers this language "poorly drafted." This is the language that he preferred. Nor have you made any case for translating Bork's federalist concerns to a state-level action, like SJR007. Again, the state-level debate of SJR007 seems like the precise things that Bork's federalist approach would favor.

Again, sorry AI.

Advance Indiana said...

anon 11:39 said, "But then you say Hershman chose the wrong language. Huh? And what is your point about SJR007 proponents rejecting Bork's comments? I don't see any reason that they would."

The proponents have maintained that SJR-7's second paragraph with the words "or any state law" does not limit what the legislature can do. Clearly, the Bork testimony informs us that those words were excised out of the FMA for this very reason. Yet, Hershman included those words in SJR-7 but dispute what even Bork conceded was a problem--and he helped draft it. It is inconceivable that the proponents were unaware of the change and the reason for it.

Anonymous said...

Sorry, AI, I STILL don't get it.

As you know, Bork is a committed federalist. As such, he did not want the marriage amendment to prevent state legislatures from taking whatever action they chose on civil unions. By choosing the language that is similar to SJR007 (again, he PREFERRED this language), it left that option to the states. This was a federalist issue, not a policy issue.

Thus, both SJR007 and the permissive laws of Vermont are both examples of what Bork appears to have intended. His comments suggest that he was agnostic as to what states could or should do. His concern was focused on making sure that a federal amendment preserved latitude for the states to go whichever direction they chose. SJR007 is one of those possible directions. So was the Vermont law.

Edward Fox said...

This is the last section of the list of "Incidents of Marriage" that Representative Marilyn Musgrave included with her proposed marriage amendment. There has been discussion around the original post about what Judge Bork said. It is important, because while the proponents of the Federal Marriage Amendment wanted to deny all these rights to homosexuals, they claimed that they only wanted to limit the power of courts to recognize them. In other words, they explicitly wanted to say that GLBT folk were second class citizens in that the courts could not recognize their rights, but they claimed that legislatures should be able to enact special rights to replace those lost rights, if a legislature so deigned. When told that the language that Judge Bork helped to draft was unclear on this point, they agreed to change it to make that point clear. Hershman, Bosma & Co. have stubbornly refused to do that. Either they care more about their pride than the welfare of the state, or they do not understand the issue, or they hope to impede any future legislature of the state of Indiana from granting any rights whatsoever to the hated subclass. None of those alternatives is edifying.

Back to considering the sweeping nature of the Hershman project:

11. Rights under "terminal care documents" and durable powers of attorney for health care execution and revocation;

[It seems to me that these are the documents that GLBT folk have drawn up, at considerable expense, to afford themselves, their loved ones, and their families some measure of the protection that married people take for granted: plainly the right to take care of their beloved partner. What does this item mean, except that such documents should not be recognized. There are no implicit rights here for an "activist", or in other words judicious, court to recognize; the subject is the validity of legal documents drawn up by the individual. The implication is that such documents would be void.]

12. Rights under family leave benefits laws;

[We cannot have GLBT folk taking time off to take care of a sick child. Sure the child will suffer without care from a parent, but that is a small price to pay for satisfying the unreasoning hatred of a few powerful men and women.]

13. The right to public assistance benefits under state and federal law;

[Wouldn't want any loopholes where they might get help; or forget that they were pariahs.]

14. Rights and duties laws relating to taxes imposed by the federal government, a state or municipality such as the right to file a joint tax return;

[14, 15, 16, & 17 are to my tired brain, merely examples of how sweeping this disenfranchisement is intended to be. Far from merely protecting the definition of "marriage", this is a campaign to establish that equality does not exist in Indiana, even as a goal, and that sectarian dogma is a valid basis for law.]

15. Rights under laws relating to immunity from compelled testimony and the marital communication privilege;

16. The homestead rights of a surviving spouse;

17. Rights under laws relating to the making, revoking and objecting to anatomical gifts by others;

Anonymous said...

Mr. Fox helps demonstrate the complete misunderstanding of Judge Bork's comments. While AI says (incorrectly) that Bork preferred other language, Mr. Fox now say that the language that Bork preferred was unclear. I know that some on this blog think that adding such a volatile name as Bork's is some sort of "ace in the hole" for winning this debate. But clear truth is some people tossing around his name really have no idea what he said.

Sorry, but that does not rise to the level of being a "bombshell."

Ellen Andersen said...

Anonymous 4:01, I think I see the source of the confusion. The original wording of the FMA's second sentence said this:

Neither this Constitution, nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. (emphasis mine)

Judge Bork recommended that the wording be changed because of its lack of clarity and the possibility that the FMA as worded would prevent states such as Vermont from passing civil unions legislation.

As per Judge Bork's recommendation, the wording of the FMA was subsequently changed, deleting the phrase "nor state or federal law" and also changing the "unmarried couples or groups" wording. The revised FMA reads as follows:


The "bombshell" that AI refers to (h/t to Ed Fox) is that Sen. Hershman chose to retain language that Judge Bork (successfully) argued should be altered because of its potential for mischief. Does that clarify things?

Anonymous said...

Not really, Ellen. AI and others still seem to be missing the point that Judge Bork was advocating for federalism. That seems quite clearly to be the primary point of his efforts. So it is far from a "bombshell" that Indiana is now taking the action that Bork tried to preserve (while also preserving the rights of states, like Vermont, to recognize civil unions).

Advance Indiana said...

Thanks Ellen, Don and Ed. This information thoroughly discredits the claims of the proponents. Let's hope legislators and the media take Hershman, Bopp and the others to task for misrepresenting the true intent of SJR-7.

Anonymous said...

And the "true intent" is.......???????

Advance Indiana said...

The true intent is to slam the door on any rigths being legally conferred on same-sex couples, whether by action of a court, legislature or government executive.

Edward Fox said...

anonymous, Bork claimed authorship of the original text, which is mutatis mutandum the same as what Hershman is proposing. When it was objected that his wording could constrain legislatures, he agreed that it would be better to change the wording to remove any doubt. Federalism had nothing, nothing, to do with it. The question was could he count on the courts following his interpretation of "construe", he admitted that his version was unclear and "poorly drafted". The question had to do with language, interpretation and effect, not federalism. You cannot mine texts for the meaning you want; not legal texts, not the Bible.

dp said...

I believe during the committee meeting one of the proponents that testified spefically said in response to questioning that they indeed wanted to also prohibit civil unions. I can't remember who said it though.

Anonymous said...

Several did.. including Eric Miller.