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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.