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Still perplexed? One last primer on the marriage amendment

gay marriage cake topper
REUTERS/David McNew
There’s still a broad swath of the Minnesota electorate that confesses to finding the proposal to amend the state constitution to outlaw same-sex marriage confusing.

Incredible though it seems following $15 million worth of campaigning over 18 months, there’s still a broad swath of the Minnesota electorate that confesses to finding the proposal to amend the state constitution to outlaw same-sex marriage confusing.

Especially compared with the text that will appear on ballots about the voting amendment, the question itself is pretty straightforward:

"Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?"

Still, a third of likely voters recently surveyed by a team at St. Cloud State University said they find  the question confusing.

It’s a good bet others are still perplexed by the difference between a “yes” vote and a “no” vote, the process — and implications — of amending the Minnesota Constitution, its relationship to state and federal laws and the impact of a U.S. Supreme Court decision on any of the several marriage rights cases it might hear this year.

Same-sex marriage will be illegal in any case

And so it would seem that one last primer is in order. For starters, whichever side prevails Tuesday — and whenever that is known — same-sex marriage is illegal in Minnesota today and will be on Wednesday. It has been since 1997, when lawmakers passed a state Defense of Marriage Act (DOMA).

And because of the 1996 federal DOMA, which defines marriage for the purpose of federal benefits as the union of one man and one woman, Minnesota is not obligated to recognize same-sex marriages performed in states where they are legal.   

So why do proponents want to amend the state constitution if gay marriage is already outlawed? Because increasingly courts and state legislatures around the country have proven willing to consider allowing the unions. There are four states where the issue of same-sex marriage will be put to voters this year; a win by gay-right advocates in Minnesota, Maine, Maryland or Washington would become the first.

By contrast, a constitutional ban would enshrine opposition, which is has faltered dramatically in recent years. Popular support for same-sex marriage has grown, and younger voters are particularly comfortable with the notion. Acting now to change the constitution would tie those younger hands going forward.

Simple majority vote to amend constitution

In Minnesota, a simple majority — 50 percent plus one — is required to approve a ballot question.  Any ballot cast that does not include a vote on the question is counted as a “no” vote. If a ban is enacted, the same no-by-default rule will make reversing the vote tough.

Right now, polls give the vote-no forces a slender lead. Poll-watchers canvassed by MinnPost in recent days are fretting about everything from the weather — good weather is believed to help DFLers — to the question’s placement on the ballot.

If it appears at the end, below judicial and municipal races fewer people vote in, some speculate the number of no-by-default votes will skyrocket. At least on the ballot prepared for MinnPost’s address, the constitutional questions appear front and center.

If the amendment is approved, there are three routes for undoing it. The first would be for lawmakers in both legislative chambers to pass another bill again putting the issue before the voters, who could pass a second amendment repealing the first. A good example: The institution and repeal of Prohibition.

Second, and not likely right now, the Minnesota Supreme Court could rule that the amendment violates the U.S. Constitution. And finally, the U.S. Supreme Court could rule that same-sex marriage bans are unconstitutional.

Several options for U.S. Supreme Court

Several weeks into the current term, the high court has yet to announce which of the several same-sex-marriage cases wending their way through the system it might hear. In addition to a suit filed in the wake of California’s 2008 Prop 8 vote, the justices may consider as many as six different decisions regarding the federal DOMA. They can choose to hear one, all or none of them, or do nothing and accept or reject the cases at a later date.

Chances are good, though, that the issue will make this year’s docket because the number of appellate court decisions begging for review is mounting. On Oct. 18 the Second U.S. Circuit Court of Appeals in New York voted 2-1 to declare DOMA unconstitutional. It was the second such decision this year; in May, the First Circuit in Boston also ruled the law discriminatory.

The legal issue in the DOMA cases is whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can legally marry. The Obama administration stopped defending the law in court in early 2011. The GOP-controlled U.S. House of Representatives has filed the legal appeals to the high court.

If the justices take up any of the cases, it will be the first time they will have addressed same-sex marriage head-on since their predecessors declined to hear a 1971 Minnesota case, “Baker v. Nelson,” " for want of a substantial federal question."

The Benson v. Alverson case

There is one Minnesota case that could make its way to the state Supreme Court, albeit long after the outcome of Tuesday’s vote and the federal Supreme Court’s docket is set. In May 2010, three same-sex couples filed a lawsuit in Hennepin County District Court, arguing that the state DOMA violates due-process and equal-protection rights.

In March 2011, the trial-court judge dismissed the lawsuit. Two months later, the Legislature passed its proposal to send the issue to the voters. Gov. Mark Dayton quickly issued a symbolic veto.

In July 2011, the plaintiffs in Benson v. Alverson took their case to the Minnesota Court of Appeals, which in January sent the case back to the district court, where District Court Judge Mary Steenson Dufresne began hearing motions in September.

If voters approve the ban here, Minnesota will become the 32nd state to prohibit same-sex marriage by amending its constitution.

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Comments (2)

It still violates the *US* Constitution and thus can be removed

The US Supreme Court has already approved gay marriage at the federal level. This is based on the Citizens-United decision.

The C-U decision was very simple. It boils down to a "legal person" (corporation) has the right to access rights available to a "real person"--even though the corporation is dramatically different than a "real person" (you can legally buy/sell a corporation, for example) . A corporation can not vote. And so on.

By definition, a "real person" is a "legal person". Thus, anyone can marry anyone else--if they both agree. Why?

The US Supreme Court stated, in its C-U decision, the LITERAL definition of a person is irrelevant--only the LEGAL definition. Thus, if one person agrees to be in the "woman/female" role in a marriage ceremony, and another agrees to be the "man/male" role in a marriage ceremony, that is "good enough" for the Supreme Court. The individuals do NOT have to be one "male" and one "female"--only that they have the *rights* of "male" and "female" as they have chosen. One is the designated "corporate man" and the other is the designated "corporate woman", regardless of their actual sex). Thus, they can be legally married under State law.

Why is this true? The right of marriage belongs to the individual. Per the US Constitution (Article IV, Section 2, first sentence or paragraph):

'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States'

The term "Citizens" is not limited to one sex or the other. Thus, both sexes have equal rights as "Citizens" per the US Constitution. There are no "States' rights" to discuss in this area because the US Constitution did not give the States that authority.

A state could choose to not have civil marriage. But that is just the state. It would not prevent any and all churches from performing marriages as they saw fit. The First Amendment would not prevent religious organizations from performing marriages. It would just mean the state bureaucracy ignored who was--and who was not--married.

Thus, the US Constitution clearly--and unambiguously--states each and every *individual* citizen has the right to ask to marry who they choose (that is the "Privileges" part)--and the person who is asked has the right to agree or say no. The state may not interfere with that selection or response in any way (other than to determine if both parties are legally able to enter into such an agreement--i.e. if they are of legal age). If the State interferes by passing a law limiting marriage in some unreasonable way (limiting marriage to being exclusively between one man and one woman, for example), it violates this portion of the US Constitution. That makes State law limiting marriage to "one man and one woman" unconstitutional--because each and every individual State agreed to comply with the US Constitution as an unconditional requirement before being allowed to become a US State. The State knowingly passed a law that violated the US Constitution's unconditional guarantee of the rights of all citizens, thus the State law is null and void.

Continuing with the Citizens-United logic of the US Supreme Court, which sex is a corporation? How do you tell? And where is that determination shown on the corporate birth or marriage certificate?

It is relevant because Mitt Romney says "corporations are people, my friend". If this statement is true, then corporations are not slaves and they are not allowed to be bought or sold--per the 14th Amendment to the US Constitution. Since corporations can not be bought or sold, the only way to get a merger or acquisition is through legal marriage. Which means there must be one "man" corporation and one "woman" corporation (in order to comply with the claim of "marriage is limited to one man and one woman"). So, which corporation is "man" and which is "woman"? Neither is man or woman. They are the same sex. Thus, same-sex marriage has been approved by the US legal system for over a century. The same "marriage" thing be done with other "people". It is long-established legal tradition, after all....

Purpose of the amendment

With all respect, the purpose of placing the amendment on the ballot is not to protect the statutory definition of marriage from activist judges. The purpose is to rile up the conservative electoral base and pump-up turnout at the polls. Nothing gets the right -wingers in a frenzy like a measure to limit gay rights (see Bachmann, Michele, political career of).