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Same sex marriage

  • Article by: Eric Black and D.J. Tice
  • Star Tribune
  • June 6, 2006 - 11:30 AM

Questions and answers about the same-sex marriage issue

Q: What's the issue?

A: The Minnesota Legislature has for years been debating whether to put a proposed state constitutional amendment on the ballot for voters to approve or reject. It would ban same-sex marriage and other legal recognition for same-sex couples.

Q: Is it legal for same-sex couples to marry anywhere in America now?

A: Neither Congress nor any state legislature has authorized same-sex marriage. In the past decade, courts in Hawaii, Alaska, Vermont and Massachusetts have ruled that their state constitutions require equal treatment of same-sex and opposite sex couples on the marriage question.

In Hawaii and Alaska, the state constitutions were quickly amended to restore the same-sex marriage ban. Vermont and Connecticut have found a middle ground, establishing "civil unions" through which gay and lesbian couples can get all the state legal and financial benefits of married couples but reserving marriage for the union of a man and a woman.

Other states have moved in that direction, sometimes using terminology such as "domestic partners."

The big development driving the action in recent years was the November 2003 ruling by the Massachusetts Supreme Judicial Court striking down the state's ban on same-sex marriage. That court specifically ruled out the "civil unions" approach.

In the past few years, voters in 15 states have approved state constitutional amendments banning same sex marriage, bringing the total with such constitutional provisions to 19. At least seven more states have such votes scheduled this year and others, including Minnesota, are considering them.

Q: What's the status in Minnesota of same-sex marriage and civil unions?

A: Minnesota is one of 39 states that have adopted Defense of Marriage Acts (DOMAs), laws that specify that marriage can only be between one man and one woman. Minnesota did it in 1997. Congress in 1996 also passed a federal version of DOMA, which specified that federal benefits - for example, the right of a survivor to collect Social Security benefits based on the earnings of a deceased spouse, the right of a married couple to file joint income-tax returns, and more than 1,000 other benefits - would not be afforded to gay and lesbian couples.

Although much of the political action now is on a state level, the biggest stakes, in dollar terms at least, involve federal tax and benefit issues, which are unlikely to be affected by state constitutional amendments, court decisions or laws.

Minnesota does not recognize civil unions. In 2002, Gov. Jesse Ventura, sympathetic to gay rights, agreed to a contract with state employees that would have extended benefits such as family health insurance coverage to gay and lesbian partners of state employees. But the Legislature refused to ratify the contract, and it was renegotiated without the benefits.

Minneapolis has a domestic partnership registry through which some benefits and protections are afforded unmarried couples, including hospital visitation privileges, anti-discrimination rules, and benefits from many large city contractors.

Q: What would the proposed amendment to the Minnesota constitution do?

It would add this provision to the state constitution:

"Only the union of one man and one woman shall be valid or recognized as a marriage in Minnesota. Any other relationship shall not be recognized as a marriage or its legal equivalent."

The "legal equivalent" language would preclude future legislatures from adopting a civil unions-type law and prevent couples from enforcing civil unions here from other states. Amendment opponents fear that it also could be used to take away rights and benefits same sex couples already have, including benefits through private employers. Courts likely would have to interpret its meaning.

Q: It sounds as if the combination of state and federal DOMA statutes pretty much settles the question. Why is anyone pushing for a state constitutional amendment?

A: Proponents say they are worried about "activist judges" striking down DOMA. A constitution outranks a statute. A court could decide, for example, that equal-protection language in the state constitution makes any law that mandates unequal treatment of heterosexuals and gays unconstitutional. But if the ban on same-sex marriages is written into the Constitution itself, it can't be unconstitutional.

Opponents of an amendment argue that such court action is unlikely in Minnesota, and that the real motive behind the amendments is politics and the belief that same sex marriage is a good issue to rile up the Republicans' social-conservative base in an election year.

Former state Supreme Court Justice James Gilbert wrote recently in a Star Tribune guest column: "[I]t should be remembered that the Minnesota Supreme Court decided this issue in 1971 in the case entitled Baker vs. Nelson. The [court] was presented with the issue of whether a marriage of two persons of the same sex was authorized by Minnesota statutes and, if not, whether state authorization was constitutionally compelled. In a unanimous decision, the Minnesota Supreme Court held that Minnesota statutes governing marriage do not authorize marriage between two persons of the same sex and that such marriages are accordingly prohibited. The court further held that this statute does not offend the First, Eighth, Ninth or 14th Amendments to the U.S. Constitution."

Q: What is the process for amending Minnesota's constitution?

A: First, majorities in both houses of the Legislature must vote within the same two-year legislative session to place an amendment before voters on the next general election ballot. The governor has no role in the process. Once on the ballot, an amendment must receive a "yes" vote from a majority of all who cast ballots in the election. This means that voters who skip the amendment question are counted as a "no" vote. If the amendment is approved by a majority of all voters, it becomes part of the constitution and can only be removed by another amendment.

Q: Where does the effort stand?

A: The House of Representatives approved the amendment in 2005. Senate approval this year would put it on the November ballot, but the bill failed in committee and it is unclear whether it will be brought to a floor vote.

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