Some legal aspects of the Marriage Amendment

By T.W. Budig
ECM Capitol reporter

Supporters of the proposed constitutional amendment banning  same-sex marriage have long argued that passage would stave off legal challenges to the state law that already outlaws same-sex marriage.

And some attorneys say to a degree that idea is correct.

“Well, yes and no,” said Teresa Nelson, legal counsel for the American Civil Liberties Union (ACLU) of Minnesota.

In general, there are two different challenges that could be brought against so-called Defense of Marriage law, she explained.

One would be to argue it violates the U.S. Constitution equal protection provisions afforded by the Fourteenth Amendment — this is the basis for a ongoing challenge in federal court to California’s Proposition 8, Nelson noted.

The other legal route would be to argue state DOMA law violates equal protection rights afforded by the state constitution, but passage of the proposed amendment would make such a challenge unfeasible, Nelson explained.

Still, U.S. Constitutional rights are superior to state law and would not be affected by passage of a state constitutional amendment, she said.

The ACLU opposes the proposed same-sex marriage ban amendment.

“I think it’s a waste of money,” Hamline University Law Professor Marie Failinger said of the proposed amendment.

Failinger is critical of the amendment for a number of reasons.

For one thing, the Minnesota Supreme Court has not been silent on the subject of same-sex marriage. Back in 1971, the court dismissed a challenge concerning same-sex marriage, she noted.

“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the Book of Genesis,” the court ruled at the time.

Further, Failinger questions the urgency supporters of the amendment feel about placing it on the ballot. Valuable legal insight could be lost by acting in haste, she argued.

Judges are smart people, Failinger said.

Why not let them offer their legal insights on same-sex marriage as cases move through the courts?

Additionally, Failinger views the proposed amendment as “highly unusual.”  It contains at least the “symbolic meaning” that the state constitution can be used as an instrument for thwarting the ambitions of minority groups for civil rights.

Both Failinger and Nelson view passage of the amendment as restricting future legislatures.

“I don’t think the answer to this is very clear,” Nelson said of the leeway lawmakers would have should voters approve the amendment.

Failinger suggested the Legislature, if the majority did not support the amendment, could start down the “rough road” of repeal by proposing another constitutional amendment.

Nelson suggested, given such a legislature, lawmakers could repeal the statutory DOMA law.

But Chuck Darrell, spokesman for Minnesota for Marriage, suggests passage of the amendment championed by his group, which is supported by the Minnesota Catholic Conference, Minnesota North District of The Lutheran Church-Missouri Synod, and many other churches and organizations, would not wholly bind lawmakers.

Indeed, Darrell does not rule out lawmakers extending benefits to same-sex couples, nor even passing civil union legislation.

“It’s respectful. It’s in a loving manner,” Darrell said of the campaign for the amendment.

He styled the need for passage as urgent.

For one thing, a current district court challenge exists in Minnesota to state DOMA law.

In speaking of the pro-amendment campaign, Darrell cites an active church component — many suburban churchgoers have seen pro-amendment activities in their churches, he said — and a database of some 70,000 supporters.

“Our outreach is everywhere,” Darrell said.

He dismisses the results of a recent Public Policy polling indicating public support in Minnesota swinging against the amendment, saying internal polling shows support for the amendment in the mid-50s..

As do amendment opponents, Darrell insists the proposed amendment crosses traditional voting- bloc lines.

Voting patterns in other states — nationally the amendment initiative has recorded a long and unbroken string of successes — suggests 30 to 40 percent of Democrats in Minnesota would vote “Yes,” said Darrell.

The Iron Range, for instance, could yield many pro-amendment votes, Darrell argued.

Rather than neutralizing support for the amendment, having Democratic President Barack Obama energize the Democratic base in Minnesota could actually bring in additional amendment support, he said.

Though still summer, the pace of the campaign is quickening, said Darrell.

“(But) we expect to be out raised and outspent,” he said.

Just recently, Minnesotans United for All Families, a coalition opposing the amendment, announced it had raised $4.6 million from some 19,000 individual donors.

“Obviously, we’re happy about that,” Minnesotans United campaign manager Richard Carlbom said.

Carlbom views the proposed amendment as wrongly “shutting the conversation down” on the subject of same-sex marriage.

Minnesotans’ attitudes towards same-sex marriage are in flux, he explained.

“We see Minnesotans evolving on the question over time,” said Carlbom, arguing against proposing a final solution to an ongoing debate.

Carlbom views the suburbs as important to the success of the anti-amendment campaign.

Minnesotans United has opened local offices in Eagan and Coon Rapids, he said.

Even the 6th Congressional District, generally considered very conservative and represented by Republican Congresswoman Michele Bachmann, will produce many “No” votes, Carlbom believes.

“You’d be surprised,” he said of levels of support.

“I feel good about it,” Carlbom said.

The question appearing on the November ballot reads:

“Should 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?”

Even if the amendment fails, existing statutory law outlawing same-sex marriage in Minnesota would remain on the books.


On Monday (July 9) Minnesota for Marriage announced that it had petitioned the Minnesota Supreme Court alleging that Democratic Secretary of State Mark Ritchie had illegally changed the title of the proposed amendment.

Ritchie argues that Democratic Gov. Mark Dayton’s vetoing of the amendment invalidated its title.

Citing perceived state authority, Ritchie recently announced that he changed the title of the amendment from “Recognition of marriage solely between one man and one woman,” to ”Limiting the status of marriage to opposite sex couples.”

Amendment supporters argue Ritchie is acting illegally.

Sen. Warren Limmer, R-Maple Grove, Senate bill author, argued that Dayton’s veto of the legislation was purely ceremonial and that Ritchie was using it as a “trumped up excuse” to thwart the legislature, according to a Minnesota for Marriage press release.

Unlike with other legislation, governors cannot kill proposed constitutional amendments by vetoing them.

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