One reason Minnesota managed to avoid Indiana-style furor over its religious freedom provisions

REUTERS/Pilar Olivares

With one word added to the law allowing same-sex marriages in Minnesota, a former legislator helped the state to circumvent the furor from the right and the left that surrounded the original Indiana religious freedom law.

In 2013, Republican David FitzSimmons, now chief of staff to Rep. Tom Emmer, offered an amendment to the legislation that passed in the DFL-dominated legislature with four Republican votes, including his. The amendment added the word “civil” before the word marriage whenever it appears in state law.

As a result, Minnesota’s Freedom to Marry Act allows same-sex marriage — but it also allows churches to refuse to perform a same-sex marriage and to refuse the use of religious facilities.

For some cultural conservatives, FitzSimmons amendment still fell short of true religious protection. “It doesn’t deal with the photographer that doesn’t want to photograph same-sex marriages, with school officials, with government officials, with marriage counselors,” said Tom Prichard, president of the Minnesota Family Council, at the time of the bill passage.

That was the intent of the original Indiana law, which placed businesses under the umbrella of religious protection if faith could be proven as a reason for a discriminatory practice. Indiana Gov. Mike Pence signed a revision of the law that specifies that businesses cannot deny service to gay patrons.

Rep. David FitzSimmons
Former state Rep. David FitzSimmons

Unlike Minnesota, Indiana does not have a law specifically banning discrimination against gay and lesbians. In 1993, Republican Gov. Arne Carlson signed the law that amended the state’s Human Rights Act to ban discrimination against gays and lesbians in education, employment, public services, and public accommodations.

That law allowed FitzSimmons, and the legislative majority that voted for the bill, to narrowly define the use of religious protection, and to reassure civil rights advocates that it could not be used as an excuse for discrimination.

The Freedom to Marry Act has not been challenged in court, and for the most part, Republicans who opposed the bill have moved on. All the Republican candidates for governor in 2014 said they would make no attempt to overturn the law.

There was one notable exception to the paucity of political fallout: David FitzSimmons.  His amendment and his yes vote for same-sex marriage forced him into a district battle that cost him the Republican endorsement and his seat in the Minnesota legislature.

Comments (13)

  1. Submitted by Robert Langford on 04/06/2015 - 11:16 am.

    Arne Carlson

    The thing about this article that caught my attention was the casual comment that Governor Arne Carlson signed the anti-discrimination bill. I am a Democrat, did not vote for Carlson, but have followed him closely for the past 30 years. He has been a great leader for our state during all of that time. Forthright, unafraid, but, mostly, very wise about public policy. His foresight in signing the bill, many years ago, when times were not so advanced, was just one of many times when he gave good direction to our state. I am thankful for him and his actions then and now.

    • Submitted by Jim Roth on 04/06/2015 - 06:19 pm.

      1993 Amendment to Minnesota Human Rights Act

      Minnesota State Senator Allan Spear was the author and sponsor of the 1993 Amendment. Republican State Senate Leader Dean Johnson spoke in favor of the amendment. There was substantial Republican opposition to the amendment although a few other Republicans also voted for it. It was a very progressive law at the time it was signed by Governor Carlson.

      Amendments proposed by Republicans in the Minnesota House and Senate during the debates over the marriage bills would have essentially undermined the Minnesota Human Rights Act in much the same manner as the Indiana law. I agree that it was an act of political courage by Governor Carlson to sign the 1993 Amendment into law.

    • Submitted by Cindy Oberg-Hauser on 04/09/2015 - 12:12 pm.

      Arne Carlson is the only Republican I’ve ever voted for. The majority of his positions, as I recall, were more liberal than his DFL opponent, Rudy Perpich.

  2. Submitted by Dan Hintz on 04/06/2015 - 11:23 am.

    Ugh

    Legislator comes up with bi-partisan solution. Loses job as a result. Not good.

  3. Submitted by Paul Udstrand on 04/06/2015 - 11:28 am.

    Wrong

    The word “civil” changes nothing legally. Churches could not have been compelled to perform same sex marriages in any event, nor would the GLBT community want to have their ceremonies in churches that had to be compelled to perform them. There were and are plenty of churches and other places that are happy to host these ceremonies. MN republicans have little to take credit for here, they fought on behalf of intolerance for decades and tried to enshrine it in out Constitution. It was the legal recognition of same sex marriage that was the issue, NOT the location of the ceremonies. The ceremonies existed before the law was even passed.

  4. Submitted by Jim Roth on 04/06/2015 - 11:32 am.

    Minnesota Freedom to Marry Act

    It should be noted that during the debates in the Minnesota House and Senate over the Bills several additional attempts were made to amend the Bills to add broader language which would have permitted discrimination based on religion. Fortunately they were defeated. Representative FitzSimmons does indeed deserve credit his role in crafting an appropriate compromise. The passage of the law was a fine hour. However, as the saying goes no good deed goes unpunished.

  5. Submitted by RB Holbrook on 04/06/2015 - 11:35 am.

    Who is not being dealt with?

    Once again, Mr. Prichard is raising straw man arguments.

    Are there any couples–gay or straight–who would want their wedding photographed by someone who opposes their marriage (unless, that is, they were trying to prove a point)? If a photographer was the Grand Lizard of the local Klan, would an interracial couple want him taking their photographs? Similarly, why would you want marriage counseling from someone who doesn’t think you should be allowed to marry? Ethically, I would think the counselor would be obligated to tip prospective clients that he would have a bias that could make it difficult for him to be professional.

    On the other hand, “school officials and government officials” are obligated to administer the law without regard to their religious beliefs. As functionaries, it is not up to them to decide who gets to be married and who does not. If it is too much for them to handle, they need to find another job.

  6. Submitted by Rob Sebo Lubke on 04/06/2015 - 01:50 pm.

    I believe that one word amendment did help…

    but there are also many other cultural and historic differences between Minnesota and Indiana. For the record, my husband and I extend a hearty thank you to the voters and lawmakers who make it possible for us to celebrate our second anniversary this year. Marriage is more significant to me personally than I really ever imagined.

    • Submitted by Rachel Kahler on 04/06/2015 - 04:59 pm.

      Congrats!

      I am happy that the law passed. And, while I don’t think that the word made a lick of legal difference, it made enough of a difference to those who were swayed by it. That’s enough. It was a fine response to those who wanted to etch discrimination into our state constitution.

  7. Submitted by Beth-Ann Bloom on 04/06/2015 - 01:58 pm.

    Minnesota’s law only applied to civil marriage even without Rep Fitzsimmon’s amendment. It was very well-drafted. The amendment was just an extra swirl in the icing atop the cake. The legislature has no power to write laws telling religious denominations how to practice.

    The Indiana bill goes off in a different direction and allows private citizens in most of the state to discriminate against LGBT Hoosiers and claim their personal views are the equivalent of a religious denomination.

  8. Submitted by Ray Schoch on 04/06/2015 - 09:25 pm.

    I will now

    …step foolishly into the swamp.

    For what little it’s worth, it seems to me that the basis of the Indiana law, and other, similar legislation, is misplaced and/or incorrect. First of all, if you’re a Christian, your faith tells you not to discriminate against anyone. That’s the whole point of Christianity – we’re all equal in God’s eyes. Not some of us, not those of us who are more pure, somehow, in our faith than our LGBT neighbors. We’re ALL EQUAL. Some might note that the Constitution and the Declaration of Independence are founded on that same notion.

    Moreover, the 14th Amendment is pretty specific in saying, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” What part of “equal protection” is difficult to understand?

    Almost all of what we’re seeing in the guise of religious freedom is bigoted posturing. I’ll once again fall back on RB Holbrook. Having been one myself for decades, I can vouch for that fact that school and other officials are functionaries. They don’t get to make the law, their job is to see that the law is carried out – it doesn’t matter whether they like the law or not. If they find they cannot in good conscience do their jobs, then, as RB points out, they need to find a different job.

    And that, ladies and gentlemen, has very little to do with “religious freedom.” You can believe anything you want in terms of religion, but you cannot *practice” everything your religion might tell you is the right thing to do. Many a white southerner found biblical justification for slavery. That did not make slavery the right thing to do, nor, after the passage of the Civil Rights Amendments (including the 14th) after the Civil War, did it make discrimination legal, though it was practiced illegally for generations by whites all over the country, especially, though not exclusively, in the south.

    If we’re a country of laws, as people who like to call themselves “conservative” continue to say, then in the public sphere, the law generally takes precedence over religion, which has historically been presumed to be a private matter.

    Personally, I liked the idea I saw elsewhere online, that businesses who presume to discriminate against LGBT citizens be required to post prominent signs to that effect. Having to publicly say the equivalent of “We’re bigots here” would quickly reveal this charade for what it is: an excuse to be mean-spirited, small-minded, and – if you take the Constitution and the Declaration of Independence seriously – unAmerican.

  9. Submitted by Mike Worcester on 04/07/2015 - 10:49 am.

    For Some Background

    Moments like these do not occur in a vacuum. They sometimes take decades to develop. This is no exception. Ty Minn Post for your context in a story that appeared almost five years ago.

    http://www.minnpost.com/politics-policy/2010/10/20-years-after-senate-first-tried-minnesota-legislature-finally-gives-gays-c

    (I am going to find the roll call from that 1993 vote to remind myself who were the courageous ones in that day.)

  10. Submitted by Ilya Gutman on 04/07/2015 - 06:25 pm.

    I agree

    For once, I totally agree with Mr. Holbrook. Government officials are supposed to uphold the law whether they agree with that or not. And no one in the right mind should want to be photographed by a photographer who doesn’t want to do it. Which brings us to logical conclusion: private business owners should be free to chose who they serve. Besides, only dictators force writers and artists write and paint when they do not want to do it.

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