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Continued: Katherine Kersten, columnist: Bar Association panel paving way for gay marriage

  • Article by: KATHERINE KERSTEN , Star Tribune
  • Last update: October 20, 2008 - 6:55 AM

Below the radar, the groundwork is being laid to change the meaning of marriage in Minnesota.

The new "Rights of Unmarried Couples Task Force" of the Minnesota State Bar Association is the latest step in this process.

Here's how the Bar Association defined the task force's mission: "In light of the disparity between legal rights and protections available to same-sex couples as compared to different-sex couples," the task force will "review the current state of Minnesota law and ... make recommendations as to desirable changes, if any, in the law to address this disparity."

"The task force's goal is to ensure that Minnesota law treats all people equally and with fairness," said attorney David Ahlvers, a task force co-chairman. "It is not to make recommendations on equal marriage rights for same-sex couples and heterosexual couples."

Many Americans want to protect one-man, one-woman marriage, but they also resonate to the fairness argument -- and to moving stories of same-sex couples who lack the hospital visitation and insurance rights that married heterosexual couples enjoy. Some states have responded by enacting "domestic partnership" or "civil union" laws as a way to preserve traditional marriage while bestowing many of its government benefits on gays.

California's domestic partnership law, enacted in 1999, is a prime example. The law permitted two same-sex individuals to register and qualify for a range of government benefits. Over the years, the legislature added more benefits, and eventually gay "domestic partners" had virtually all the rights of married couples under state law.

Connecticut's civil union statute, enacted in 2005, was more sweeping and immediate in its impact. It conferred all the legal advantages of marriage on gay couples in one stroke.

Now, however, it's clear that these legislative attempts at fairness have backfired. In the past few months, the Supreme Courts in both California and Connecticut have struck down their state's domestic partnership or civil unions law as unconstitutional under their state constitutions, and have required that marriage be redefined to include same-sex couples.

The two courts used similar reasoning. They acknowledged that, under the new arrangements, gay couples enjoyed the same rights as heterosexual couples.

In the California case, however, the court found that the legislature's decision to treat gay relationships as worthy of marriage-like benefits actually bolstered plaintiffs' argument that domestic partnerships are discriminatory. Since the legislature has treated same-sex and opposite sex couples equally, it said, withholding the marriage label from gays is a "mark of second-class citizenship."

Last week, the Connecticut court reached a similar conclusion. "Although marriage and civil unions do embody the same legal rights under our law," said the court, by creating civil unions, the legislature had relegated same-sex couples "to an inferior status."

These two decisions reveal that domestic partnership and civil union laws -- often touted as a compromise that protects marriage -- are in fact likely to hasten the demise of marriage as the union of one man and one woman.

States that want to protect their traditional marriage laws can draw two lessons:

First, if they have a domestic partnership or civil union law, they should repeal it. A court might find it unconstitutional.

Second, these states should not pass laws that give gay couples benefits similar to those of marriage. If they do, a court may find that they have created an unequal, two-tiered system of partnership, and may impose same-sex marriage as a result.

This is the context in which we must evaluate the work of the Minnesota State Bar Association's Unmarried Couples task force.

In coming months, the task force will comb through our state's law books, scrutinizing areas from family law and estate planning to real estate, tax, and consumer law in an effort to identify instances where married and unmarried couples are treated differently. It will issue a report with recommended changes by June 2009.

Will a well-intentioned Minnesota Legislature respond by making marriage-like government benefits available to same-sex couples, but without the marriage name?

Today, gay marriage supporters probably can't muster the public support they would need to get a same-sex marriage bill through the Legislature. As a result, their most effective strategy is likely to chip away at the law, erasing differences in the treatment of married couples and gay couples in a piecemeal fashion until they are eliminated.

When that process is complete, Minnesota -- like California and Connecticut before it -- will be fertile ground for a same-sex marriage lawsuit.

The Unmarried Couples Task Force will likely move us closer to the end of traditional marriage in Minnesota, whether this is its stated intent or not.

Katherine Kersten • kkersten@startribune.com Join the conversation at my blog, www.startribune.com/thinkagain.

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