Doug Belden, Pioneer Press, St. Paul, Minn. –
Minnesotans are not deciding this November whether same-sex couples can marry.
They can’t, under state law, and the outcome of the vote will do nothing to change that.
So, what’s the point?
What’s at stake, say advocates on both sides, is how Minnesota will be set up to grapple with gay marriage in the future.
To Jason Adkins, vice chairman of the campaign supporting the proposed amendment, the vote is the public’s chance to weigh in before the “elites” get a chance to redefine marriage through the courts or Legislature.
To Richard Carlbom, who’s leading the opposition effort, voting the amendment down allows the debate about same-sex marriage to continue.
Amending the state’s constitution to define marriage as a heterosexual union would bring “a hard stop to the conversation,” said Carlbom, campaign manager for Minnesotans United for All Families. “It ties the hands of future generations.”
Carlbom said his group’s goal is not to secure gay-marriage rights but to preserve an environment in which the state can figure it out without a conclusion having been locked in to the constitution.
But Adkins, executive director of the Minnesota Catholic Conference and vice chairman of Minnesota for Marriage, says the amendment would not be a permanent ban on gay marriage. “It’s not irreversible,” he said. “It’s pretty easy to put a constitutional amendment on the ballot.”
What it would do is allow Minnesotans to affirm the definition of marriage that
exists in state law in advance of action by “powerful legal and cultural forces seeking to redefine marriage,” Adkins said.
If the amendment is defeated, and depending on the makeup of the 2013 Legislature, “marriage could be redefined as early as January of next year,” he said.
Several bills to authorize same-sex marriage, repeal the proposed marriage amendment or establish civil unions have been proposed in the last two sessions of the Legislature.
But none has gone anywhere, whether the House and Senate were controlled by Republicans, as was the case in 2011-12, or controlled by Democrats, as in 2009-10.
John Marty, a Democratic state senator from Roseville who has introduced legislation to authorize same-sex marriage, says he believes support would be stronger now.
“This is an issue where people’s minds are changing month by month,” he said.
Democratic Gov. Mark Dayton supports gay marriage, and depending on the makeup of the Legislature elected this November, Mary said, if the amendment is defeated “I think we have a very good chance of passing equality.”
Adkins and others also perceive a threat to traditional marriage from the court system.
In particular, they cite a case in Hennepin County District
Court called Benson vs. Alverson, in which three same-sex couples are suing the county over its failure to issue them marriage licenses, claiming the state law limiting marriage to opposite-sex couples violates their rights under the state constitution.
The case was dismissed in March 2011. In January 2012, the state Court of Appeals upheld that ruling in part but also overturned it in part, ruling the trial court did not properly weigh plaintiffs’ arguments about violation of the state constitution. The case was sent back to the trial court for further action.
Plaintiffs’ attorney Peter Nickitas said he’s confident he’ll win on the merits of the case and that the 1971 state Supreme Court ruling in Baker v. Nelson — which upheld the constitutionality of the state law banning gay marriage — will become “a relic on some desert landscape in Minnesota judicial history, just like Plessy against Ferguson (upholding “separate but equal” racial segregation) and Dred Scott (ruling that blacks aren’t U.S. citizens) are relics in (U.S.) Supreme Court history.”
Nickitas’ adversary in the case is the Hennepin County attorney’s office, run by Mike Freeman, a supporter of gay marriage. Freeman says “the law is moving” toward allowing same-sex marriage, and he predicts that “it’s a matter of time” before Minnesota allows gay marriage or civil unions.
Freeman says it’s his duty to represent the county in the lawsuit and he will do so, but he says he wants the state added as a defendant, given that the suit is challenging a state law.
There are hearings in the case scheduled in the next few months, but there won’t be a trial on the merits before next year, Freeman said.
A victory for plaintiffs in the Benson case would have “statewide application,” Freeman said: Gay and lesbian couples would be able to get marriage licenses across Minnesota.
Nickitas said he plans to appeal if he loses.
If the marriage amendment passes in November, the status of the Benson suit becomes unclear, Freeman said, but the fight over whether the state can limit the rights of same-sex couples will certainly continue.
“Minnesota courts will rule on this issue some time,” he said. “I think that’s a given.”
Doug Belden can be reached at 651-228-5136. Follow him at twitter.com/dbeldenpipress.
Voters will be asked in November: “Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?”
Minnesota and marriage: A closer look
In the state’s earliest days, marriage laws were written in a way that assumed the union of a man and a woman but didn’t spell it out or prohibit any alternative. The 1905 Minnesota statutes laid out the minimum age for men and women to get married and proscribed bigamy, incest and unions among the mentally disabled.
The state Supreme Court affirmed in 1971 that, even though Minnesota law did not specifically prohibit same-sex marriage, it was understood that marriage referred to opposite-sex unions.
In 1977, lawmakers added language to specify that marriage was a civil contract “between a man and a woman.”
In 1996, Congress passed the Defense of Marriage Act, which defined marriage as only a union of a man and woman and said no state was required to recognize a same-sex marriage recognized by any other state.
In 1997, the Minnesota Legislature amended state statute to include the Defense of Marriage Act provisions. Same-sex unions were also added to the list of “prohibited” marriages, and marriage applications were required to list the sex of each party.
The word “marriage” doesn’t appear in the state’s constitution, so no existing language would be amended.
The proposed amendment, passed in May 2011 by the Republican-led state Senate and House, would add a new section to Article XIII, “Miscellaneous Subjects,” that would read as follows: “Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota.”
For the amendment to be adopted, a majority of people voting on Election Day would have to vote yes. That means not voting on the ballot question is the same as voting no.
38 states prohibit same-sex marriage, according to the National Conference of State Legislatures. Twenty-nine of those have the language in their constitutions (26 of those also have it in statute). Nine have it only in statute.
Six states and the District of Columbia allow same-sex marriages. In three of those states (including Iowa), the state’s highest court ruled their state constitution required same-sex couples get the same marriage rights as those of opposite sex. In the other three states and D.C., same-sex marriage was brought about by legislative action.
In the remaining six states, there are no provisions on same-sex marriage in place or they are in flux.
AT THE POLLS
In all 30 states where voters have been asked to amend their constitutions to include traditional marriage, the effort has succeeded.
States putting man-woman marriage into their constitutions is a relatively recent phenomenon. There were no such constitutional provisions before 1998. The number grew dramatically after 2004, when the Massachusetts Supreme Judicial Court ruled the state constitution required equal marriage rights for same-sex couples even though there was no specific language dealing with marriage in the constitution, according to the National Conference of State Legislatures.
In 2012, North Carolina voters passed a constitutional amendment to define traditional marriage. Maine voters, having rejected the legalization of same-sex marriage in 2009, will vote in November 2012 on a measure that would legalize it.