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Constitutional prejudice: Why the Minnesota senators got it wrong on same-sex marriages

David Schultz
Courtesy of Hamline University
David Schultz

No surprise — Minnesota Senate Republicans unveiled, on April 26, a state constitutional amendment to bar same-sex marriage. Assuming it clears the Legislature and goes to the voters, there is no guarantee that it will pass. But that is beside the point. The purpose of the amendment is less about its actual passage than about symbolic politics and voter mobilization in the 2012 elections. Its proposal demonstrates a gross misunderstanding of American politics, the Constitution, and is an unfortunate and cynical appeal to prejudice for political gain.

Why a constitutional amendment to bar same-sex marriage? It seems unnecessary given a 1971 Minnesota Supreme Court decision, Baker v. Nelson, and a 1997 state law barring same-sex couples from marrying. Yet GOP senators, in affirming their reasons for the amendment, stated that laws can change and courts can alter their minds but constitutional amendments are more permanent. They contended that voters have a right to have a say on who is allowed to marry.

The senators are correct about the former, wrong about the latter. However, the law should change to reflect new circumstances and public opinion and judges should calibrate interpretations in light of new facts and circumstances. The law should not be fixed in the past, reflecting old prejudices and beliefs. To argue that is to assert that the law should be frozen in the past. Democracy is about consent of the present, not of the past.

The logic of fixing laws in the past was characteristic of the most notorious Supreme Court case of all time — Dred Scot v. Sanford — an 1854 decision declaring African-Americans (then slaves) could never be citizens because it was contrary to the intent of the constitutional framers. The same logic persisted in the 1874 Minor v. Happersett case, where the Supreme Court ruled that women could not vote for similar reasons. These decisions reaffirmed old prejudices and beliefs.

Marriage as a fundamental right
The purpose of the law should not be to enshrine dogmas and prejudices. The Supreme Court said the same in its 1967 Loving v. Virginia decision striking down a Virginia law barring couples of different races from marrying. In Loving the court declared marriage a fundamental right — the essence of a free society is letting people decide with whom they form a life. Democracy is about majority rule, but such a decision about who we can marry is not a choice for majorities to decide. This is why we have a Bill of Rights — to protect the minority from the tyranny of the majority.

As Justice Robert Jackson eloquently declared in a case affirming freedom of religion: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to ... freedom of worship ... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

The same is true with marriage. I doubt anyone believes that the voters should have been able to decide in 1967 or today whether individuals of different races should marry. Proposals to put this to a vote simply mask racism and appeal to prejudice. The same logic applies to same-sex marriage.

There is no good public-policy reason to bar same-sex couples from marrying. But the constitutional amendment is not about policy, it is about symbolic politics and voter mobilization. As was demonstrated in 2004, when Karl Rove and the GOP placed bans on same-sex marriage on the ballots across many states, it was a terrific hot-button issue to mobilize voters. It worked. The religious conservatives turned out in droves.

A symbolic payback — and an effort to repeat 2004
Placing a ban on gay marriage on the ballot for 2012 might work for similar purposes. First, it is a symbolic payback to the religious right, who backed GOP candidates in 2010. Thus, it is pandering to special interests. Second, placing the amendment on the ballot is simply an effort to repeat 2004. The hope no doubt is that this amendment in 2012 will offset what some think will be a better year for Minnesota Democrats when President Barack Obama and Sen. Amy Klobuchar are on the ballot. Place this amendment on the ballot and as the theory goes, it will drive more conservatives to vote.

However, 2012 is not 2004 and such a strategy may backfire as public opinion has changed and it may engage progressives this time. This is a gamble the GOP senators are taking. Their purpose thus is not so much to pass the amendment but use it and cynically appeal to prejudice to pay off supporters and drive voter turnout.

David Schultz is a professor at Hamline University School of Business, where he teaches classes on privatization and public, private and nonprofit partnerships. He is the editor of the Journal of Public Affairs Education (JPAE). Schultz blogs at Schultz's Take, where a version of this article first appeared.

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Comments (13)

There has always been such a thing as "tyranny of the majority" in which a majority of a population may believe in certain things and legislate and act in accordance with those beliefs to the detriment of a minority.

From the stoning of the adulterer (those without sin, cast the first stone!) to the crimes of Nazis in WW2, the general acceptance of a view and its consequences is no proof of it's correctness.

And oddly enough, "tyranny of the majority" does not actually need a majority of people, it just needs a vociferous and activated minority to push their views to an extreme end.

One of the most interesting statements has to do with "rights" versus "privileges". Counter to the Loving decision, the clear and unambiguous statements made by Republicans in conference want to redefine marriage as a "privilege" and not a "right", based on the "interests of the children".

While the "interests of the children" are nothing but a fig-leaf to disguise the insertion of a specific belief of one branch of Christianity into the constitution, the effect of codifying marriage as a "privilege" is truly staggering and unprecedented.

Talk about government intrusion! Who ARE suitable mates? Who ARE suitable to be prospective parents? Marriage panels, anyone?

You would think that Mr. Schultz would be willing to do something positive in promoting “Gay Marriage” than just labeling all opponents as “prejudice.”

Perhaps Mr. Schultz could start a petition drive endorsing gay marriage. There should be many in the MN legislature who would embrace this endeavor and show their enlightened understanding by proving to all that they are not “prejudice.”

Maybe Senator Amy K. could also assist Mr. Schultz in this petition drive and be willing to be the first signee encouraging the establishment of a new Minnesota law advocating “gay marriage.” This petition drive would be based on current public opinion and promote freedom from “old prejudices and beliefs.”

Mr. Schultz should immediately start this petition drive and get many Legislators to work toward a new law that advocates “gay marriage.” As soon as Senator Amy K signs this petition, let all Minnesotans know!

"Marriage panels"--good one.

David, you provide a well-reasoned argument against this ballot measure, thank you.

I am reminded of something my mother says: You cannot reason someone out of an idea they did not arrive at by reason.

The GOP is without reason in this matter.

Ron, from your comment its clear that you either did not read the article, or that you did not understand any of it. Try again.

This is a jobs creation measure.

It is going to create hundreds of jobs for politicians and community organizers, not to mention the lawyers and judges as it moves through the courts.

Dogs chase their tails for amusement, people do this sort of stuff. Which one is smarter?

Marriage is a *societal/social* contract. Religion co-opted marriage millennia ago in order to try to control society.

If marriage is so sacred, *why* is divorce allowed to exist? Conservatives have a real hard time with that question. By definition, if marriage is "sacred" ("til death do us part"--LOL), then the right should be trying to ban divorce. They are *not* trying to do that--guess why? Because marriage is NOT sacred--it is a legal *convenience*.

Republicans believe that every Minnesotan has the right to marry a gay person as long as that person is of the opposite sex.

Ron Gotzman is right on this one. The real reason DFLers don't want the gay marriage issue to come before the voters is because they don't want voters to know where they stand. Gay marriage is political poison for DFLers. Conservatives will vote against them for sure. If the DFLers side with conservatives, then the DFL base will vote against them. Either way, they lose. Their best bet is to stall, stall, stall until the US Supreme Court makes gay marriage the law of the land. (At least that's what they're hoping will happen.)

The other bogus part of the Republican push on the gay marriage ban is that they say they are simply responding to a request from their constituents that the state define marriage. Just democracy in action, letting the people decide. No prejudice, discrimination or homophobia there. Just an honest attempt to have a decision "by the people".

Well, if it were an honest attempt to determine "the will of the people", the question would read: "Should marriage between two people of the same sex be allowed in Minnesota, or should it be banned in Minnesota?"

As it sits, the "honest attempt" is a choice between the existing ban and an even deeper ban.

Hardly a choice. Hardly honest.

Rosalind, Ron Gotzman is not right and neither are you. Schultz is well aware that gay marriage is a tough political issue in some places. It is only in the last few months that national polls have showed that a majority of Americans now support gay marriage. Given how fast support for gay marriage is growing and who its growing with (younger voters) its just a matter of time before it becomes the law of the land. Amy K and others aren't pushing it because we aren't there yet. The point Schultz is making is that we should not be using constitutional amendments to make this policy. This isn't about the will of the people - its about defeating the will of the people 5 or 10 years from now. This move is to keep discrimination in place even after people have come around on gay marriage. Its the last stand of the bigots.

I doubt too many Democrats are worried about gay marriage in 2012, especially in Minnsota. DFLers don't want the issue to come before the voters because its wrong to put people's fundamental rights up to a vote. Its because they don't want ignorance and bigotry of the (arguable) majority taking away the right of a minority group to marry.

Why should one set of loving, consenting adults be denied a right that other such adults have and which, if exercised, will do no damage to anyone else?

It would seem to me that this amendment would perpetuate the "notion that opposite sex couples are superior to same sex couples".

There were (and continue to be a few) people who believed that black people were inferior to white people in a wide variety of ways, and that governmental policy regarding the rights of black people should be made based solely on that incorrect assumption.

The same was true regarding the rights of women.

This is just more of the same.

Bigotry, no matter how sincerely believed, even when argued from the Bible, is still bigotry,...

should still be called bigotry,

and has long since been cast aside by all reasonable, thoughtful, intelligent people

(but I suspect that leaves out all but a very few "conservatives," most religious fundamentalists, and the Republicans in the Minnesota legislature).

Greg and Rosalind are indeed misunderstanding this issue. In terms of popular opinion the republicans are falling quickly behind the curve on this issue. Polls show same sex marriage is gaining in acceptance and the slightly younger demographic overwhelmingly supports it. Why? Because they live, work and socialize now with openly gay people and know in their heart to make laws preventing gays from living normal lives denies them fundamental human rights. Has opinion reached a tipping point yet? Will this drive more people to the polls to affirm their belief in basic human rights for everyone without regard to sexual preference or will the republicans be able to once more gain some advantage by embracing bigotry in the extreme? That is the point, Ron and Rosalind, I say bring it on. The experience of Scott Walker in Wisconsin who badly miscalculated the support for right to work laws has given second thoughts to many moderate republicans about the tone of republican policy. We are certainly nearing the end of this argument. There is no doubt same sex marriage will eventually be seen as a human rights issue by the majority, once again affirming our humanity and driving another prejudice at least to an embarrasing smaller vocal minority.