Will GOP try to amend the Minnesota Constitution (to ban same-sex marriage)?

This is by way of clarification to one of last week’s posts, but also raises an important look-ahead to the 2011 legislative session.

On Wednesday morning, I covered a morning-after-the-election analysis panel at the Humphrey Institute featuring former Speaker (and former gubernatorial candidate) Margaret Anderson Kelliher as the DFL analyst. In passing, Kelliher said that: A) assuming that the recount finds Dayton to be the duly elected governor, and B) given the deep differences on the major social-issue questions between Mark Dayton and the incoming Republican majorities in both houses of the Legislature, that C) the new lineup is a recipe for nothing happening on the social issues such as abortion, same-sex marriage, gun rights and a few others.

After that post went up, a friend mentioned to me that this overlooks the possibility of state constitutional amendments on those topics. Under the Minnesota Constitution (Article IX, Sec. 1), proposed amendments can be placed on the next general election ballot for a ratification vote of the public. This requires a majority vote in both legislative houses. It does not require the governor’s signature.

I ran this by Kelliher to make sure I wasn’t missing anything, and she said that yes, she was thinking of ordinary legislation on social issues but realized afterward that she should have mentioned the possibility of amendments. She agreed with my friend that it was possible, and not all that unlikely, that the new Republican majorities will do something along those lines.

Going back to Michele Bachmann’s days in the state Senate, there has been a strong desire on the part of social conservatives to amend into the Minnesota Constitution a definition of marriage as something legal only for a couple consisting of one man and one woman. Such a proposed amendment actually passed in the state House of Representatives, and may have had majority support in the state Senate, but was blocked by the DFL Senate leadership from coming to a vote in 2004, 2005 and 2006.

Although by statute, Minnesota law already defines marriage as available only to one-man/one-women couples, a constitutional amendment to that effect would prevent any state judge (or presumably the majority of the Minnesota Supreme Court) from ruling that something in the Constitution (for example, Article I, Sec. 2 guarantees equal rights and privileges for all Minnesotans, unless the rights are abridged by the law of the land) means that gay or lesbian citizens have a right to marry.

At his first press conference after being chosen to to be the next speaker, state Rep. Kurt Zellers was asked about his plans for action on social issues. He punted. Jobs and the economy would be the priority, he said. In general, the campaign that elected the new majorities did not focus on social issues.

On the other hand, the likely new chairman of the Senate Judiciary Committee told the Associated Press that there’s “a lot of bottled-up desire” in his party to finally put gay marriage before state voters:

“The statement I’ll make is that there’s a keen interest by a majority of the members of both chambers to define marriage, and to allow the public to do so,” said Sen. Warren Limmer, a Republican from Maple Grove.

Limmer said the amendment should apply to civil unions as well.

Tom Prichard, president of the Minnesota Family Council, said in the same AP story that his group, which has plenty of influence in Republican and social conservative circles, doesn’t care whether the Legislature deals with the marriage question this year or next, but he wants it to be on the ballot in 2012. St. Paul-Minneapolis Archbishop John Nienstedt has endorsed a marriage amendment and made his position known to Catholics statewide.

Of course, the ability of the Republicans to get around their potential Dayton problems by taking issues to the voters as constitutional amendments isn’t limited to social issues. Fiscal conservatives have also used ballot initiatives or constitutional amendments in other states to make it harder for future Legislatures to raise taxes.

Comments (26)

  1. Submitted by Christopher Moseng on 11/08/2010 - 09:20 am.

    It turns out I am much more of a constitutional conservative than those tend to publicly self-identify in that way, in that I think constitutional amendments should not be offered or made capriciously, or to enact a legislative policy. And I guess I’m more of a fiscal conservative, too, because I can appreciate that the cost to taxpayers of defending such an amendment against the inevitable court challenge doesn’t provide any return on the investment—besides a short-lived frisson of power to those who don’t really understand that allowing gays to marry would do more to undermine the “gay agenda” (as they understand it) than prohibiting it.

    That said, I hope the “conservatives” overreach and overreach hard on this. It will make it all the easier to defeat it at the polls, or strike it down in court.

  2. Submitted by Paul Brandon on 11/08/2010 - 09:37 am.

    1. It would be a good distraction from the need to actually DO something.

    2. Anything Kelliher says is itself political.

  3. Submitted by Greg Kapphahn on 11/08/2010 - 10:39 am.

    Our right-wing friends need to understand that there is probably NO single issue that would energize progressives, out to the very fringes of the left wing than putting a constitutional amendment to ban gay marriage on the ballot in the next election.

    To do so would be to bring massive, easily-supported charges that our Republican friends could care less about whether you have a job, whether you have access to health care, whether there’s a nursing home available within a reasonable distance from your house if you need it, whether the streets and highways are patrolled, or even whether property tax increases are going to drive you out of the house you’ve owned for 50 years,…

    They only care about controlling who it is that you or your children or grandchildren are falling in love with and seeking to build a stable, happy family with.

    What kind of twisted, sexually repressed pervert does it take, after all, to care far more about other people’s sex lives than about the fact that large numbers of their fellow citizens need to worry about whether they’ll have a roof over their heads, food to put on the table and whether their streets are safe and in good repair?

  4. Submitted by Peder DeFor on 11/08/2010 - 11:18 am.

    It would be a huge mistake to move on this quickly. The early focus should be on economy and jobs. But that doesn’t mean it should never come up. Personally I’d prefer an amendment that would simply forbid the courts to decide the issue but that’s me.
    One way that gay marriage supporters (and I’m one of them) can win this issue is to work on persuading people ahead of any votes. In other words, stop calling people names. Show that the ordinary gay couple is far from a stereotype but is just like most folks. Understand that for long term comity you must have buy in from the general populace.
    Opinions on gay marriage have certainly been trending towards acceptance. Find ways to keep that trend going. Using unelected judges isn’t the way.

  5. Submitted by Thomas Swift on 11/08/2010 - 11:51 am.

    Greg queries “What kind of twisted, sexually repressed pervert does it take, after all, to care far more about other people’s sex lives than about the fact that large numbers of their fellow citizens need to worry about whether they’ll have a roof over their heads, food to put on the table and whether their streets are safe and in good repair? “

    And then goes on to answer the question “Our right-wing friends need to understand that there is probably NO single issue that would energize progressives, out to the very fringes of the left wing than putting a constitutional amendment to ban gay marriage on the ballot in the next election.”

    Allowing Minnesotan’s the opportunity to exercise their right to vote on issues is certainly in line with the conservative agenda, however I think it would be prudent to put it off until next year.

    The GOP will still have majorities in both chambers, and the people will understand that the focus should rightly be on digging ourselves out of debt and getting the economy moving again.

  6. Submitted by Ginny Martin on 11/08/2010 - 12:09 pm.

    Interesting how “constitutional conservatives” think that a basic right should be voted on by the public. A right is a right whether you like it or not. It would not stand up to a court challenge (of course, this US Supreme Court may decide against the rights of individuals as they frequently have recently) based on strict Constitutional amendments.
    It would be defeated–certainly eventually–so why spend that money? We could use it.
    Freedom to marry is a basic right no matter how conservatives try to manipulate the issue.

  7. Submitted by Peder DeFor on 11/08/2010 - 12:17 pm.

    Hey Ginny, was the Bill of Rights voted on or was it simply given to the founders on stone tablets?

  8. Submitted by Jeremy Powers on 11/08/2010 - 12:26 pm.

    One of the definitions of a Republican is being concerned with what other people do with their own genitalia. This will happen; just a matter of when.

    I believe the Republicans will move this forward next year, because it will a) be closer to the election, hoping that more voters vote with emotion rather than fact; b) it doesn’t make it look like it is as big a priority as economic issues; c) the deal to get the economic concessions from the religious conservatives will still take place this year; d) we won’t see talented, affluent gay Minnesotans moving away or hearing of hiring problems, like they have North Dakota as much; and e) although I don’t think it will pass, it will fire up a certain group of people for which this issue is paramount and it would be hard to sustain that fire for 18 months.

    But again, if tax cuts really create jobs (they almost never do), the decade of 2000-2010 would have seen the greatest job growth 80 years instead of the worst. So, a lot of people will be going to the polls in 2012 looking at what is certain to be a complete fiscal disaster by Republican leadership who actually believe there is a comparison to a family’s budget and state finance.

  9. Submitted by Greg Kapphahn on 11/08/2010 - 12:29 pm.

    Once again we see how quickly some of our conservative friends feel the need to provide distractions for themselves, misdirection for others, no matter how far fetched, rather than be willing to look at the truth: that other people’s sex lives are far more important to them than any other aspect of the well being of those people’s lives.

  10. Submitted by Dan Hintz on 11/09/2010 - 09:46 am.

    BD, the founding fathers would not be aghast at this because they are the ones that set up the system we have now. They set up the court system as a check on the idea of “pt it to a vote.”

    Peder, no one is saying that you can’t challenge something even if it has been declared a fundamental right. That’s just a strawman. The argument that Ginny and others here are making is that in some cases – cases involving fundamental rights – judges can and should step in to protect the rights of the minority even when those rights are not popular.

  11. Submitted by Ginny Martin on 11/08/2010 - 03:33 pm.

    PEDER
    you’re getting politics and religion all confused again.

  12. Submitted by B Maginnis on 11/08/2010 - 03:54 pm.

    “Freedom to marry is a basic right no matter how conservatives try to manipulate the issue”.

    Uh, Ginny?

    Checking my handy pocket Bill of Rights and so forth, not seeing anything….let me check the Bible, can I get back to you?

  13. Submitted by Rachel Munoz on 11/08/2010 - 03:55 pm.

    The progressives need to check theirs stats. The majority of Minnesotans support protecting marriage as between one man and one woman with an amendment to the state constitution. If anything it would bring out conservatives in an presidential election year. That’s what you guys are afraid of here. Emmer probably would have won handily if he had been willing to take a position on this.

  14. Submitted by Howard Miller on 11/08/2010 - 04:25 pm.

    It is disappointing that some Minnesotans are so anxious to make a new state constitutional standard that denies some citizens the basic human right of entering into a loving marriage.

  15. Submitted by Dan Hintz on 11/08/2010 - 04:30 pm.

    Wow, epic fail for the so-called constitutional scholars on this thread. Why is is it that people seem to forget that there is a 200+ year body of constitutional law between the adoption of the constitution and the present? Ginny is absolutely correct in saying that marriage is a basic right, because the supreme court made that ruling in Loving v. Virginia (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival….”)which rendered bans on interracial marriage unconstitutional.

  16. Submitted by Dan Hintz on 11/08/2010 - 05:04 pm.

    When Loving v. Virginia was decided in 1967, fewer than 20 percent of Americans thought interracial marriage should be legal. Unbelievably, it was not until 1991 when a majority of Americans came to that conclusion. Should the rights of interracial couples to marry have waited until there was public support?

    One of the roles of the courts is to ensure that rights of the minority are not trampled by the tyranny (a frequently misused and misunderstood term) of the majority. In this country, you can’t make laws that single out people by gender, or race, or religion or a number of other protected classes, even if there is popular support for doing so. There are some rights that are beyond the reach of voters.

    Gay marriage is inevitable in this country. There is a strong direct correlation between age and support for gay rights, with younger people being more supportive. It would obviously be easier if gay marriage came about by legislative means rather than through the courts, but why should gay and lesbian couples have to wait? Why should the bogus idea of “protecting marriage” justify continuing to deny tangible legal rights to same-sex couples and their families?

    http://www.pensitoreview.com/2010/02/19/gay-marriage-support-double-approval-of-mixed-marriage-in-1968-2/

  17. Submitted by John Jordan on 11/08/2010 - 05:32 pm.

    A constitutional amendment not being constitutional? How does that work? Homosexual marriage is not a right no matter how many times you say it.

    Bet if the DFL controlled all three branches they’d be forcing the exact opposite through and liberals here would all be defending it.

  18. Submitted by Henk Tobias on 11/08/2010 - 05:44 pm.

    I believe Rachel is correct about one thing, putting this on the ballot in 2012 will bring out the wing nut element in numbers that should give us all pause. It fits well with National Republican modus operandi of getting devisive issues on state ballots to energize their base. Democrats need to understand that.

    Personally I have no doubt that it’ll be on the ballot 2012, that just how they roll. They can’t govern, they can’t build anything, they can’t do anything positive, but they do know how to get the base riled up and out to vote.

  19. Submitted by Christopher Moseng on 11/08/2010 - 06:29 pm.

    For those in this thread unclear on the concept, the U.S. Supreme Court declared the right to marry to be a fundamental right under the U.S. Constitution in Loving v. Virginia, 388 U.S. 1 (1967). In that case, the court overruled a state law prohibiting interracial marriage, rejecting arguments that the law’s prohibitions applied equally to all races. Recognizing the parallels in the gay marriage “debate” is left as an exercise for the reader.

  20. Submitted by Peder DeFor on 11/08/2010 - 08:07 pm.

    Ginny, I didn’t get my point across. My fault, I was writing quickly and didn’t offer a full argument. I’m not saying that rights are derived solely from religous interpretation or anything at all like that. What I’m saying is that rights are determined by people. The Bill of Rights was determined by THE people. Each of them was argued over and voted on. There was no supreme counsel that would simply speak forth on what was a ‘right’ and what wasn’t.
    I’m arguing that there still isn’t. I know that libs are upset over the Citizens United case. It’s been ruled over by the Supreme Court. Should libs simply accept that decision or is that somehow not a basic right? The next post up quotes Ellison as wanting to reverse it by amendment. Does he not understand that basic rights are decided by judges?
    Virtually every decsion made by voters (and their representatives) has something to do with basic rights. Frankly, this is a talking point that needs a bunch more thought behind it.

  21. Submitted by B Maginnis on 11/08/2010 - 11:31 pm.

    The founders, most assuredly, would be aghast that it has come to this.

    Lt’s pt it to a vote and be done with it.

    “make a life with?”

    You’ve got to be kidding me.

  22. Submitted by Christopher Moseng on 11/09/2010 - 06:10 am.

    “A constitutional amendment not being constitutional? How does that work?”

    Read the Prop 8 ruling.

    The notion that a constitutional amendment singling out an unpopular or disfavored group for express disapproval should be put to a popular vote? That’s what would have the founders rolling in their graves. (See Federalist 10).

    In any event, the fourteenth amendment wasn’t drafted by the founders. It contains no “except gay people” exception. There is no need to further amend it to clarify. And no, I would have no problem arguing that it would be a radical injury to our constitution to seek to add one. Recognizing equal rights and equal protection under the law should be a one way ratchet.

    Anybody supporting the right to have the state inspect the genitals of people who want to get married should really think hard about whether they can call themselves “limited government” conservatives.

  23. Submitted by Richard Schulze on 11/09/2010 - 06:42 am.

    Everyone has a right to their personal opinion regarding gay marriage. But, their particular reading of Genesis would be a fine justification for social policy if we lived under a theocracy. Happily we do not.

    What I find convincing is the point that the 14th amendment provides for equal protection under the law, that states provide protection under the law through marriage and that state governments, therefore, may not provide unequally for marriage without a compelling interest in doing so, which doesn’t exist.

  24. Submitted by Colin Lee on 11/09/2010 - 10:19 am.

    A state constitutional amendment can be unconstitutional by the federal constitution. It’s clearly and plainly written in the Supremacy Clause of the U.S. Constitution. There’s no ambiguity.

    It’s the area of the Constitution where Tom Emmer and the Tenthers (good band name) fail to understand our laws.

    “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding…”

  25. Submitted by Paul Brandon on 11/09/2010 - 02:22 pm.

    Actually, only a minority of the adult inhabitants of the United States were eligible to vote for the Congress the apporved the Bill of Rights:
    White male property owners.

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