“It’s difficult for me to get excited about rewriting the [Michigan] Constitution solely for the sake of appearances.”
— Devin Schindler
Western Michigan University law school
“Taking racist language out of the [Alabama] Constitution is sooner or later going to happen.”
— Wayne Flint
Auburn University law school
With the U.S. Supreme Court’s decision last month in Obergefell v. Hodges, the Ohio Constitution, and the constitutions of many other states, are left with language that bars the solemnization and recognition of same-sex marriages, but that is unconstitutional and unenforceable. Most states that have this language had it inserted into their state constitutions by popular vote. What now becomes of this language and what does it now mean?
There is no suggestion that this language is still valid nor is there any argument that states could enforce it without drawing costly federal lawsuits that those states would absolutely lose. The problem is that leaving the language in place can be confusing and lead to future errors, but removing it is a complicated and potentially expensive process.
Earlier this week, the National Constitution Center in Philadelphia released a report on outdated state constitutional language that highlighted these issues. It noted that the rise in voter-approved constitutional amendments to cover issues that had previously been handled by legislative action was adding to the problem. (Consider, for example, the issues of casino gambling and marijuana legalization in Ohio that are or were legislative prohibitions but that have been attacked at the ballot box by constitutional amendment rather than by initiative or legislative action.)
One such example is flag burning. Two separate decisions of the U.S. Supreme Court have found that the burning of any flag, including the U.S. flag, is constitutionally protected free speech. Yet, 47 states have laws that prohibit flag burning. Ohio Revised Code section 2927.11 is one such law and makes it a misdemeanor of the second degree to purposefully deface, damage or physically mistreat the U.S. flag. Only Wisconsin, Wyoming and Alaska do not have active laws against flag burning and Alaska appears to be the only state that has never had one.
Statutes are easy to fix when compared to state constitutional provisions, however. The method of amending a state constitution varies from state to state but very often requires a majority or supermajority vote of the state’s citizens. The Obergefell decision certainly isn’t the only example of outdated and ineffective provisions. Michigan still has a requirement that all voters be at least 21 years old (in direct conflict with the 26th Amendment to the U.S. Constitution). Maryland still has a provision that requires a religious test for candidates for public office, despite the Supreme Court striking that provision down in 1961 and seven other states have a similar provision.
Several states currently have or are looking at committees to recommend a constitutional “clean-up.” Ohio and Michigan are among them. In Michigan, it’s the Citizens Research Council and here in Ohio, it’s the Constitutional Modernization Commission, funded by the Ohio General Assembly, made up of lawyers, judges, state officials and others and chaired by former Supreme Court Administrator Steve Hollon. The commission was originally slated to operate into 2021, but the most recent Ohio budget terminates their funding at the end of this biennium on June 30, 2017.
We can take some solace in Ohio, though. The National Constitution Center points out that our state constitution has relatively minor problems compared to that of Alabama, which has the wordiest constitution of any government in the world. Alabama’s state constitution has more than 800 amendments — so many that even simple legislative actions like local mosquito-spraying ordinances now have to be approved by constitutional amendment in the state. Worse yet, there is significant language about segregated schools and numerous other racist provisions. But a 2012 effort to remove that language revealed that the entire document is so convoluted that simple changes weren’t simple at all.
Ohioans can call for a state constitutional convention every 20 years but have not done so since 1912. The Constitutional Modernization Commission and a similar commission in the late 1960s have been formed in their place. Any recommendations coming out of that commission will need approval by the voters of Ohio.
David Hejmanowski is the judge of the Probate/Juvenile Division of Delaware County Common Pleas Court.
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