I think it's important for the media to understand the conflation of two strategies at work among Republicans, business interests, and academic interests in the legislature, whether friend or foe. As educated press rooms, editorial boards, reporters and blogs around the State take a position against SJR-7, those friends seeking to minimize the damage of SJR-7 have been left inadvertently pursuing a strategy which, ironically, aligns their rhetoric momentarily with the rhetoric of the right wing. They must awake. If this amendment is not reversed, any legislative attempt to extend to same sex couples the equal protection of any law whatsoever will be banned in Indiana.

The Strategy that Was

Many of our friends (corporations and universities with sizable glbt employee bases) are afraid to take on conservatives in the legislature. In the case of corporations, they have their own lobbying interests at stake, their own fear of conservative backlash. So while aware of the dangers of the amendment, they sit, cautious and quiet. In the case of the universities, the very same Senators that assault their students and faculty also fund them, so they cower.

But our friends settled upon a strategy: Because they have been lulled into believing the amendment's language is ambiguous, and because they believed the amendment would pass, they initiated a dangerous game of chicken by attempting to establish in the legislative record a legislative intent as weak as possible. They did so by offering opinions that the Amendment would not affect them or their employees, that (for instance) in their opinion they can continue as State institutions to offer domestic partnership benefits.

How the Strategy came to cohere with a change of right wing strategy

At the same time that our friends were looking for ways of effecting the legislative record for future interpretation, the right wing was finding a problem. First, they were indeed finding subtle resistance from our friends, who needed to be calmed. Second, they found that there was diminishing sympathy for the broad impact of the amendment. They hit on their own strategy, a strategy of assuaging concerns enough to get the amendment passed through the legislature in its full force.

Why the Friendly Strategy Won't Work

The legislative record will prove meaningless in containing the force of the amendment, because the amendment is made not by the legislature, but by the vote of the people in referendum. And when that vote comes, Miller, Clark, and the rest of the brown-shirt crowd will be doing everything they can to nail into the public record the reality of what the amendment says: No law shall be construed (by anyone, no matter its intent) to confer a legal incident of marriage on an unmarried couple.

Then the Amendment will come to haunt in the legislature. First, to every attempt to extend relief to same sex couples by providing them with even one legal incident of the 1300 associated with marriage, the opposition will argue (accurately) that such an attempt flies in the face of the popular will, constitutionally expressed, that no law confer an incident of marriage on an unmarried couple. In that instance, the Amendment's power will be as deterrent to the passage of any legislative relief for a same couple of the nature enjoyed by a married couple, whether the measure provide for hospital visitation, intestate inheritance, or equal tax treatment on property.

But Second, in the unlikely event that an incident of marriage survive the logical Constitutional argument in the legislature against it to become law, SJR-7 has an especially virulent impact. Ironically, when social conservatives challenge any such legal relief as being unconstitutional, they will be able to cite the legislative record to observe that it was only being offered to same sex couples because something similar had been provided to a married couple. The law established as intending to confer an incident of marriage, a judge will have every constitutional reason to strike it down. And if a social conservative, a judge will have no reason not to.

In Conclusion

The charade observed in the Senate was to achieve passage of the amendment in full force. All of the opinions issued in order to establish a lesser impact in the legislative record will become meaningless after a public referendum. Once Amended, the Constitution will prohibit the application of any law that confers on a same sex couple a privilege or immunity equal to that enjoyed by a married couple, especially if the legislature is seeking specifically to level the playing field with regard to a married couple no matter how inconsequential the topic.