Friday, May 21, 2010

Challenging Minnesota's Ban on Same-Sex Marriage: Good Law, Bad Politics?

The challenge to Minnesota’s ban on same-sex marriage is good law, bad politics. There is little question that the Minnesota Constitution and precedent favor the plaintiffs. But Governor Pawlenty’s recent appointments to the Supreme Court practically guarantee there will not be a majority that reaches that conclusion.

For over 20 years I have taught a class on state constitutional law, and have taught a class on Minnesota constitutional law for over a decade. In teaching this subject I have looked at how same-sex marriage has been litigated at the state level.

Challenges to bans on same-sex marriage in America got their start in the 1971 Minnesota Supreme Court decision Baker v. Nelson. Then like now, a case was brought in Hennepin County, asking for the local officials to issue a marriage license to a same-sex couple. In 1971 there was no language in the law declaring gay and lesbian couples could not marry, but the Court ruled against the plaintiffs nonetheless.

The Court then stated that it was “unrealistic” to believe that those who drafted the state marriage laws would have intended same-sex couples could marry. It reasoned: “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.” In rejecting claims that bans on same-sex marriage were similar to antimiscegenation laws prohibiting interracial marriages, the Court noted those laws were based on “patent racial discrimination.” There was a rational basis to limiting marriage to a man and a woman, including promoting procreation, and that did not constitute discrimination.

The legal challenges in Baker implicated the Due Process and Equal Protection clauses of the Fourteenth Amendment. The recently filed legal challenge in Benson v. Alverson is different in several ways. First, there is now Baker as precedent, as well as a Minnesota Defense of Marriage Act limiting marriage to opposite sex couples. Second, the legal challenges are rooted in the Minnesota Constitution, specifically its Due Process, Equal Protection, and Freedom of Conscience provisions. Third, this case comes not at the beginning of the legal challenges to same-sex marriage, but after several courts, including Massachusetts and Iowa, have used their own constitutions to reach decisions contrary to Baker.

After Baker in 1971, one of the most significant legal revolutions in the United States begin. Labeled, “new judicial federalism,” this a federalism among state courts interpreting their state constitutions often differently from the U.S. Constitution, often offering more protections for individual rights than those found in the Bill of Rights. Minnesota has been part of that revolution. The Minnesota Supreme Court has ruled that the State’s Equal Protection and Freedom of Conscience clauses offer more protection than those found in the in the U.S. Constitution and Bill of Rights. Given the heightened protection these clauses offer, that should be enough to question the rational basis of a ban on same-sex marriage.

Other state courts have already done that. The Massachusetts Supreme Court found that the ban on same-sex marriage violated its state’s equal protection clause. It noted in part the scores of laws that conferred benefits to those who were married and how gays and lesbians were denied these benefits since they could not wed. The Iowa Supreme Court invoked its historical state legacy of freedom in striking down the ban on same-sex marriage. It went further, noting that the only rational basis for prohibiting same-sex marriage were based on religious preferences and fears that it would damage or threaten traditional unions. The Iowa Supreme Court rejected these preferences and fears as discriminatory and irrational. Looking at the decision nearly a year later, issuing of marriage licenses to gay and lesbian couples has not hurt traditional marriages in the state. The same is true in Massachusetts.

These state court decisions serve as reinforcing precedent that the ban on same-sex marriage in Minnesota violates the state constitution. State courts regularly reference decisions from other states. This option was not available to the Minnesota Supreme Court in 1971, but it is now. Moreover, in 2009, the Minnesota State Bar Association Unmarried Couples Task Force Report documented, similar to that in Massachusetts, all the legal and financial benefits marriage conveys on couples. Those benefits are denied to same-sex couples. Similarly, if Iowa could invoke the state spirit of liberty to support its decision, Minnesota can do the same. When the Constitution was written voting rights for the free slaves was supported by many of the drafters. This support is at the heart of Minnesota’s stringent and highly protective Equal Protection clause.

In sum, the legal case to strike the ban on same-sex marriage is easy. The Minnesota Constitution offers more legal protection than does the U.S. Constitution, thereby demanding more justification under the Equal Protection and Freedom of Conscience clauses to sustain the marriage ban. Based on Minnesota precedent and rulings from other states, and documented evidence of unequal treatment to same-sex couples, one can not longer conclude that limiting marriage to a man and woman furthers a rational basis or furthers any governmental interest. It is time to reject Baker and accept the idea that preventing same-sex couples from marrying is patent discrimination no different than the antimiscegenation laws prohibiting interracial marriages.

Given the above, the legal challenge to Minnesota’s ban on same-sex marriage should be a no brainer. Unfortunately, law and politics intertwine. With Governor’s Pawlenty’s recent elevation of Lori Gildea to Chief Justice and David Stras to the Supreme Court, there is probably not a majority prepared to use the Minnesota Constitution to follow Massachusetts and Iowa. Instead, as Stras’ amicus brief in the unallotment case revealed, he is more prepared to interpret the Minnesota Constitution to follow federal precedent than to depart. Thus, legal merits not withstanding, the Gildea Court does not look like it will reject Baker.

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