Constitutional Prejudice: Why the Minnesota Senators Got it Wrong on Same-Sex Marriages

No surprise–Minnesota Senate Republicans unveiled on April 26, a state constitutional amendment to bar same-sex marriage. Assuming it clears the legislature and goes to the voters there is no guarantee that it will pass. But that is beside the point. The purpose of the amendment is less about its actual passage than about symbolic politics and voter mobilization in the 2012 elections. Its proposal demonstrates a gross misunderstanding of American politics, the Constitution, and is an unfortunate and cynical appeal to prejudice for political gain.

Why a constitutional amendment to bar same-sex marriage? It seems unnecessary given a 1971 Minnesota Supreme Court decision Baker v. Nelson and a 1997 state law barring same-sex couples from marrying. Yet GOP Senators in affirming their reasons for the amendment stated that laws can change and courts can alter their minds but constitutional amendments are more permanent. They contended that voters have a right to have a say on who is allowed to marry.

The senators are correct about the former, wrong about the latter. However, the law should change to reflect new circumstances and public opinion and judges should calibrate interpretations in light of new facts and circumstances. The law should not be fixed in the past reflecting old prejudices and beliefs. To argue that is to assert that the law should be frozen in the past. Democracy is about consent of the present, not of the past.

But the law should not be fixed in the past. Such logic was characteristic of the most notorious Supreme Court case of all time–Dred Scot v. Sanford–an 1854 decision declaring African-Americans (then slaves) could never be citizens because it was contrary to the intent of the constitutional framers. The same logic persistent in the 1874 Minor v. Happersett case where the Supreme Court ruled that women could not vote for similar reasons. These decisions reaffirmed old prejudices and beliefs. The purpose of the law should not be to enshrine dogmas and prejudices. The Supreme Court said the same in its 1967 Loving v. Virginia decision striking down a Virginia law barring couples of different races from marrying. In Loving the Court declared marriage a fundamental right–the essence of a free society is letting people decide with whom they form a life. Democracy is about majority rule, but such a decision about who we can marry is not a choice for majorities to decide. This is why we have a Bill of Rights–to protect the minority from the tyranny of the majority.

As Justice Jackson eloquently declared in a case affirming freedom of religion: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” The same is true with marriage. I doubt anyone believes that the voters should have been able to decide in 1967 or today whether individuals of different races should marry. Proposals to put this to a vote simply mask racism and appeal to prejudice. The same logic applies to same-sex marriage.

There is no good public policy reason to bar same-sex couples from marrying. But the constitutional amendment is not about policy, it is about symbolic politics and voter mobilization. As was demonstrated in 2004 when Karl Rove and the GOP placed bans on same-sex marriage on the ballots across many states, it was a terrific hot button issue to mobilize voters. It worked. The religious conservatives turned out in droves.

Placing a ban on gay marriage on the ballot for 2012 might work for similar purposes. First, it is a symbolic payback to the religious right who backed GOP candidates in 2010. Thus, it is pandering to special interests. Second, placing the amendment on the ballot is simply an effort to repeat 2004. The hope no doubt is that this amendment in 2012 will offset what some think will be a better year for Minnesota Democrats when Barack Obama and Amy Klobuchar are on the ballot. Place this amendment on the ballot and as the theory goes, it will drive more conservatives to vote.

However, 2012 is not 2004 and such a strategy may backfire as public opinion has changed and it may engage progressives this time. This is a gamble the GOP senators are taking. Their purpose thus is not so much to pass the amendment but use it and cynically appeal to prejudice to pay off supporters and drive voter turnout.