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

The new Republican Legislature could get around DFLer Mark Dayton and take issues — including a ban on same-sex marriage — to the voters as constitutional amendments.

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.

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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.