Katherine Kersten: As Iowa shows, a marriage law isn't enough

Minnesota law holds that marriage is the union of one man and one woman. Our state's Defense of Marriage Act, passed in 1997, reflects the people's will.

In a 2006 poll commissioned by Equality Minnesota, a same-sex marriage advocacy group, 75 percent of respondents said they supported Minnesota's current marriage law, while only 19 percent opposed it.

In 2004 and again in 2005, the Minnesota House of Representatives voted to give citizens a chance to back up our statutory definition of marriage by placing it in the state Constitution. But Senate DFL leaders used procedural stunts to ensure that we never got to vote on the marriage amendment.

In 2006, Dean Johnson, then Senate majority leader, worked overtime to prevent a citizen vote.

He claimed that fiddling with the constitution was unnecessary, because Minnesota already has a law against same-sex marriage. Why go beyond that, he asked?

Johnson's soothing words may have had an effect on Minnesotans.

In the Equality Minnesota poll, 61 percent agreed with the statement: "Minnesota already has a law banning same-sex marriage; we don't need a constitutional amendment." A year before, a poll conducted for Minnesota for Marriage found that 61 percent of Minnesota residents would vote for the amendment.

Thousands of Iowans can now tell you that a law is not enough.

Like Minnesotans, Iowans probably thought that marriage was in little danger of redefinition in their state.

Marriage in Iowa has always been the union of one man and one woman. In 1998, the state's Legislature reaffirmed that when it overwhelmingly approved a Defense of Marriage Act. The measure passed 40 to 9 in the Senate and 89 to 10 in the House.

But two weeks ago, Iowa District Judge Robert Hanson informed his fellow citizens that he was jettisoning their definition of marriage. He ordered that the Defense of Marriage statute be "nullified, severed and stricken" from Iowa's law books.

In Hanson's view, Iowans had no rational basis for supporting such a law.

Hanson based his decision on the Iowa Constitution, ruling that the state's marriage law violated its equal protection and due process provisions. Assuming that a handful of higher court judges upholds the decision -- which he stayed pending their action -- laws supporting male-female marriage will be a thing of the past in Iowa.

Are you listening, Minnesota?

Many folks in our state believe that heterosexual marriage is a bedrock social institution. It connects fathers and mothers to their children and provides an essential framework for reconciling men's and women's sometimes different but complementary needs. For those reasons, many Minnesotans will tell you, marriage has been embraced across the world and through the centuries.

But if a few people here hold a different view and they happen to wear black robes, they can trump the will -- and the accumulated wisdom -- of the rest of society.

Last year, Sen. Dean Johnson was so eager to downplay this judicial threat to marriage that he claimed that several Supreme Court justices had assured him they would not overturn Minnesota's Defense of Marriage act. After an inquiry found no evidence of this, Johnson's constituents sent him packing.

Some politicos claim that the marriage amendment is unnecessary because the Minnesota Supreme Court has already ruled on, and rejected, same-sex marriage. But that case, Baker vs. Nelson, was decided 36 years ago -- long before judges dreamed that elite opinion-makers would one day denounce male-female marriage as mean-spirited bigotry. In addition, the Baker case relied on the federal Constitution, not the state Constitution, as the Iowa court did.

In the end, we don't need Iowa's Judge Hanson to remind us that traditional marriage is under assault.

"Almost half of the country's marriage laws are or have been under attack by a small group who want to force their will on the people in the guise of constitutional adjudication," wrote Teresa Stanton Collett, a professor at the University of St. Thomas School of Law, in a 2007 William Mitchell Law Review article.

"Activists are aggressively seeking out judges who are willing to disregard the text of the laws, as well as the political will of the people, in efforts to remake the institution of marriage to suit their particular political views," she added.

Courts in 11 states have ordered legal recognition of same-sex unions, according to Collett -- 12, counting Iowa. In 2003, Massachusetts' high court voted 4-3 -- a mere one vote difference -- to redefine marriage to include same-sex couples. In states such as New York and Washington, high courts have upheld one-man, one-woman marriage.

The only way to prevent state courts from redefining marriage is to define it in a state's constitution. Twenty-seven states have done so, according to the Marriage Law Foundation, and 23 did so even though they had a law defining marriage as the union of one man and one woman.

Unlike some DFL honchos here, leaders in those states understood that the only safe place for marriage is in the state Constitution.

Katherine Kersten • kkersten@startribune.com

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