Gay marriage by Dean Rohrer/NewsArt

Dean Rohrer, NewsArt

Marriage amendment? Leave marriage well enough alone

  • Article by: RICHARD W. PAINTER
  • May 9, 2011 - 9:35 PM

The Minnesota Legislature should reject a measure that would put on the 2012 ballot an amendment to the state Constitution that needlessly restates existing law on marriage.

Minnesota marriage laws have been well-settled for a long time. Marriages must be between a man and a woman. There is no indication that state courts will wade into this area and legislate from the bench, and there is very little chance that the Minnesota Supreme Court would allow them to do so.

Enshrining statutory provisions in our Constitution sends a message that we do not trust our judges to faithfully apply statutes. Minnesota judges, like judges in the vast majority of states, have left our marriage laws intact.

Furthermore, the proposed amendment would force Minnesotans to engage in a divisive debate over a ballot measure. That debate would be particularly damaging for Republicans, who are divided on this issue.

The debate would also be costly and might encourage outside organizations to pour money into Minnesota -- not only to defeat the ballot measure but to defeat Republican candidates. We do not need a ballot measure that invites outside interest groups on either side to meddle in Minnesota politics.

If proponents of same-sex marriage were pushing their own constitutional amendment, this debate would be foisted upon us. But such is not the case, and there is no serious talk of such an amendment.

Because existing law provides that marriage is between a man and a woman, Minnesotans who want the law to stay this way can prevail with quiet fortitude and common sense by leaving the law alone.

Elevating statutes to the Constitution also ties the hands of future legislatures and future generations of voters who will elect those legislatures. Future changes could not be made without the expense and public rancor of ballot measures.

Once we do this with marriage laws, advocates on both sides of other issues will use constitutional amendments to promote their agendas.

Minnesota is not a state that governs itself largely through ballot measures, and most of us want it to stay that way.

Yet another danger is the damage this ballot measure could inflict on our economy. At present, Minnesota does not stand out among states that do not allow same-sex marriage.

We are not viewed as "homophobic" because we refuse to change existing law. If, however, we ask all Minnesotans to vote on the definition of marriage in 2012, it is certain that one side or the other will be dissatisfied with the result.

Companies with employees who feel strongly on this issue will not want to locate here.

At a time when many Minnesotans are unemployed and business owners are struggling with lagging sales and rising costs, we do not need a ballot measure on a divisive social issue that drives people away from our state.

Minnesota should send the message that we are open for business -- that we are open to all people -- and that we are serious about promoting the interests of businesses and their employees. This ballot measure does exactly the opposite.

Finally, this ballot measure is mean-spirited. Without any need whatsoever, it sends a message to gays and lesbians that they are not welcome to live in our state with rights bestowed on the rest of us.

Existing marriage law, of course, makes a distinction that many gays and lesbians feel is unjust. But our refusal to change existing law does not send anywhere near so negative a message as would our elevating a single definition of marriage to our Constitution.

Kicking people when they are down is not the "Minnesota Nice" that we want to project to the rest of the world.

Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School, and was associate counsel to the president and chief White House ethics lawyer under George W. Bush.

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