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Minnesota’s gay community purposely moving slowly on gay marriage efforts

California supporters of gay marriage rally to overturn the recently passed Proposition 8, which nullified the court ruling allowing same-sex unions.
REUTERS/Phil McCarten
California supporters of gay marriage rally to overturn the recently passed Proposition 8, which nullified the court ruling allowing same-sex unions.

In a state long known for being one of the most gay- and lesbian-friendly states in the country, why hasn’t there been a recent court case supporting the idea that marriage should be a right for all couples?

“We’re all about marriage equality,” said Phil Duran, staff attorney for Outfront Minnesota, an organization that pushes for rights for gay, lesbian, bisexual and transgender people. “But litigation is NOT a good idea at this time. I find this personally frustrating. I went to law school because I wanted to rattle cages, but …”

When couples who want to go to court to win the right to marry come to Outfront, they’re told, “Not yet.”

“They come here,” said Duran, “and every time it seems like it’s the same: They’re good people, they dream of a solution, they have rational arguments and we have to explain that it’s not time.”

Massachusetts has marriage equality. Connecticut, too. California had it and lost it again because of a woman-man marriage amendment that passed in the last election, but most believe that the constitutional amendment will be challenged in the courts and/or go before voters again within a couple of years.

Even Iowa’s Supreme Court will be hearing a marriage-equality case on Dec. 9.  In that case, a lower court ruled in favor of marriage equality a year ago, but the ruling was put on hold, pending the outcome of the decision of the Iowa Supremes.

Vermont, New Hampshire, New Jersey and Oregon all have laws allowing civil unions or domestic partnerships.

But not in supposedly gay-friendly Minnesota.

Minnesota precedent complicates court challenge here
The problem, unique to Minnesota, Duran says, is a Supreme Court case from four decades ago: Baker v. Nelson.

“It stands as precedent,” Duran said. “It casts a shadow over what we’d like to do.”

A quick review: On May 18, 1970, two University of Minnesota students, Richard John “Jack” Baker and James Michael McConnell applied to Hennepin County District Court clerk Gerald Nelson for a marriage license. He denied the application, because the applicants both were men.

Baker and McConnell sued Nelson, claiming Minnesota law on marriage made no mention of gender. The trial court was not impressed with the argument, agreeing with Nelson. The state Supreme Court agreed with the lower court. When Baker-McConnell went to the U.S. Supreme Court, the couple was rebuffed again. The Supremes, in 1972, dismissed the case “for want of a substantial question.”

Baker v. Nelson has been used in other states as precedent to block efforts at marriage equality.

The couple has never really stopped going to court. But Baker and McConnell are seen as being at the far fringes of the gay rights movement in Minnesota, a problem more than a solution.

“They were way ahead of their time,” said Duran, diplomatically.

Movement’s approach: One step at a time
Most of the state’s mainline gay rights organizations now believe that it’s better to lead the state to marriage equality one step at a time, but not make the mistake again of jumping ahead too far. The last thing that’s needed, they believe, is a contemporary court to affirm Baker v. Nelson.

In fact, there have been small steps backward since Tim Pawlenty, who as a state legislator was a supporter of GLBT civil rights, became governor. Pawlenty twice has vetoed bills that would allow local governments to provide domestic partnership benefits to employees. Those rights were won when Jesse Ventura was governor. Pawlenty is on record as saying he supports a constitutional amendment that would define marriage as being between a man and a woman.

Not all in Minnesota share the incremental approach of the major organizations. Not all even really believe Pawlenty is a deep-down foe of marriage equality.

“Things are changing so quickly,” said Doug Benson. “Pawlenty’s a political animal, and he’s not stupid. I think he realizes that opposing rights is not a good place to be if you want to be a national presence.”

Benson and his partner of 18 years are weary of waiting for the right to marry. They’ve been attempting to put together a group of about 30 Minnesota couples to head to court NOW for the right to marry.

The efforts of building the group and pushing for a court case, or legislative action, is moving forward, Benson said, despite warnings from Outfront and other GLBT rights organizations such as Project 515. (That organization is named for the 515 Minnesota statutes they claim discriminate against GLBTers.)

Family Council among groups opposing same-sex marriage
Meantime, the efforts of such organizations as the Minnesota Family Council to block any steps toward same-sex marriage are continuing. Tom Prichard, executive director of the Family Council, said he expects some legislators to at least propose the amendment during the upcoming session. But Prichard doesn’t expect the Legislature to be very receptive to spending much time with the issue.

“Obviously, with the DFL in such control, it will be a great challenge,” said Prichard of trying to push the amendment. “But the Republicans who are there are more conservative than before.”

Prichard’s organization has fought every step of legislation that expands rights for GLBTers.

There’s a flier, sent out by the Family Council, posted on the wall at the Outfront office as a reminder of what those who favor expanded rights face.

The flier is headlined “Incremental Approach to Legalizing Homosexual Marriage.” The flier shows figures of two men going up the stairs toward a goal of same-sex marriage.

The steps: Anti-discrimination laws, crime victim services, gay adoption, wrongful death benefits, domestic partner benefits, hunting & fishing licenses, hate crimes, inheritance rights and civil unions all lead to same-sex marriage, the Family Council says.

Hunting & fishing licesnes?  Ducks and walleyes are a threat to heterosexual uber-rights?

Monica Meyer, public policy director for Outfront, said that something so basic as family fishing licenses are a wonderful tool to enlighten all sorts of people about inequities in state law.  

The fact that longtime Minnesota couples of the same sex can’t get family hunting and fishing licenses has opened the eyes of a lot of anglers and hunters in places that might not be considered gay-friendly, she said.

“There’ll be a (same-sex) couple who have been fishing together for years, and they’ll be talking to some other fishermen,” Meyer said. “The subject of licenses will come up, and the fishermen will be surprised. ‘You can’t get a family license? That’s just wrong.”’

Meyer is of the belief that Minnesota is a more GLBT-friendly place than ever before. In her travels around the state, she said, there is growing support for across-the-board equal rights.

There are hopeful statements about the Minnesota mindset in a statement from Outfront and Project 515.  The statement cites a 2006 survey conducted by Decision Resources Ltd. that found: “Nearly eight of 10 Minnesotans said government should treat people no differently because of their sexual orientation. Almost 70 percent of Minnesotans agreed that ‘gays and lesbians should have the same rights and responsibilities as everyone else.’ ”

Still, both she and Duran have concerns about a backlash. They point to the re-election of Rep. Michele Bachmann as a reason for GLBT rights advocates to be wary. They look at an adoption amendment in Arkansas that passed this November that is chilling: The amendment says only married couples can adopt and, of course, in Arkansas only a man and a woman can marry.

Other reminders that it’s not safe to assume that most Minnesotans are ready for marriage equality came in the passage of amendments this month in California, Arizona and Florida that restrict marriage to man and woman. That raises the total of states with such amendments to 29.

There’s not much legislative will for such an amendment in Minnesota at this time, Meyer believes.  But neither is there much will among legislators to talk about marriage equality.

Outfront and other organizations may try to make some small steps — perhaps even try to test Pawlenty on domestic partnership benefits again — but there will likely be no big steps.

“Not yet,” remains the warning of most mainline GLBT organizations.

Doug Grow writes about public affairs, state politics and other topics. He can be reached at dgrow [at] minnpost [dot] com.

Comments (14)

  1. Submitted by George DeCarlo on 11/24/2008 - 11:46 am.

    Speech at the Great March on Detroit

    23 June 1963

    Detroit, Mich

    “Then there is another cry. They say, “Why don’t you do it in a gradual manner?” Well, gradualism is little more than escapism and do-nothingism, which ends up in stand-stillism.”…

    Martin Luther King, Jr

  2. Submitted by Ron Gotzman on 11/24/2008 - 12:04 pm.

    I thought we already passed the “defense of marriage act?”

    Please DFL, own the gay marriage issue and run with it, please!

  3. Submitted by Randi Reitan on 11/24/2008 - 12:09 pm.

    As I read this, I realized just how long ago marriage equality was first fought for in Minnesota. In 1970 I met my husband,Philip. I married him in 1972. I think of all those years we have been together and for 36 of them, we have been married. It makes me sad and angry Richard John “Jack” Baker and James Michael McConnell have not even had one year of marriage in this state. I remember hearing about the speech Hubert Humphrey gave at the national Democrat Convention in 1948. When told that the time was not right to fight for Civil Rights… Humphrey said it was 172 years late. Where is the Hubert Humphrey of our day who will fight for civil rights for all people? How can Minnesota be a state that denies its citizens the right to marry the person they love?

  4. Submitted by Bruce Kvam on 11/24/2008 - 12:26 pm.

    Marriage is a social institution that strikes deep emotional chords in many people. If the population at large doesn’t respect the idea of gay marriage, it’s not going to happen.

    The gay marriage movement has essentially been using the courts to demand respect. Respect is ultimately something you have to earn. But you can demand equal rights. So instead of trying to legislate gay marriage into existence, the first step is to ensure that everyone has equal rights.

    We need a simple, one-step approach to establishing the legal relationship between two people. This would not the same as marriage, or even a civil union. It would be utilized by any two people: two business partners who happen to live together, two elderly friends who have no other relatives, two divorced women who want to raise their kids together, an unmarried male and female couple with children and a house, a husband and wife who want to carve out some exceptions to the standard marriage (say, with regard to inheritance), an elderly person and a younger caregiver, a parent and an adult child, two individuals who are estranged from their respective families and want nothing more do with them, and, coincidentally, two lesbians or gays.

    This standard agreement would consist of a checklist of rights and responsibilities with regard to property, inheritance, children, medical decisions, coverage by medical insurance, etc. It’s essentially a standardized prenuptial agreement without the nuptials. The individuals would pick and choose those rights and responsibilities conferred to one another, and which ones are not.

    It’s nothing that you can’t already get today through a power of attorney agreement or a pre-nup. The only real difference is that it’s a standard one-stop agreement that has been ironed out by people who know what they’re doing, instead of having every pair of individuals trying to craft such an instrument themselves.

    That’s the equal right that gays and lesbians can demand. The equal respect can be achieved by finding a church that will give them a marriage.

    A hundred years ago Irishmen and Catholics got no respect from American society. Sixty years ago blacks had to go to the back of the bus. Today a black man has been elected president. It’s just going to take time for gays to achieve that same level of respect. For now we have to settle for equal rights. Equal respect will come in time.

  5. Submitted by Jeff Kline on 11/24/2008 - 12:41 pm.

    Absolutely no hate here. But ain’t no way I will stand for someone who comes in and wants to trash things here by removing the defense of marriage act. Not going to happen. I don’t believe this is an “over time” thing either. It has to do with a definition rooted in scripture which is what this country was and still is based on. To remove this separator is to then remove the constitution and many of us will not stand for it.

  6. Submitted by Thomas Swift on 11/24/2008 - 02:03 pm.

    I’ll be on-board with the notion that two guys playing house = marriage the day after the USDA announces that sand is a food group and publishes a minimum recommended daily allowance.

  7. Submitted by Rachel Munoz on 11/24/2008 - 03:47 pm.

    The tactics of those that support homosexual marriage to obfuscate the issue through emotion will not get them what they want (calling those that oppose the effort hateful among other things). It doesn’t matter what they do to try to “normalize” their behavior and gain respect and acceptance. It is abnormal behavior. If every person on the planet supported GLBT efforts and said it was okay it still would not be.

  8. Submitted by Eva Young on 11/24/2008 - 08:13 pm.

    “Still, both she [Monica Meyer] and Duran have concerns about a backlash. They point to the re-election of Rep. Michele Bachmann as a
    reason for GLBT rights advocates to be wary. They look at an adoption amendment in Arkansas that passed this November that is chilling: The amendment says only married couples can adopt and, of course, in
    Arkansas only a man and a woman can marry.”

    EY: Bachmann didn’t even campaign on the gay marriage issue in her congressional campaign – she campaigned on taxes, immigration scares
    and “drill baby drill”. If campaigning on that issue would have helped Bachmann, she’d have done it – but she didn’t. Bachmann
    winning by a plurality in the most conservative, gerrymandered district in the state is NOT a referendum on gays. OutFront Minnesota is just using this as an excuse to do nothing.

    Personally, I do think the DOMA statute should be challenged in court – on the basis that it was attached to a non-related bill when it passed the legislature. If the legislature wants to pass such a bill again, they should do it with an up or down vote.

    In 1999, Outfront Minnesota would not support efforts to repeal the Minnesota Sodomy laws. There was a grass roots effort to repeal the sodomy laws – and when the hearing occured, OutFront Minnesota didn’t even send a representative to testify.

    Will OutFront Minnesota expect anything from the Democrats they helped elect? I doubt it. They did nothing for Republicans who took risks to support OutFront’s position on the municipal domestic partnership bill. Neil Peterson was left hanging out to dry by Outfront Minnesota.

  9. Anonymous Submitted by Anonymous on 11/24/2008 - 09:55 pm.

    Not like you need me or anything, but as a heterosexual man with two young children, I would like stand up with strength and pride to support those courageous people who are still fighting for basic civil rights. I don’t know your struggle, and never could, but I will always be a voice by your side if you needed it. Keep up the struggle. You are never alone.
    Take care and Peace,

  10. Submitted by Doug Benson on 11/25/2008 - 05:44 pm.

    Jack Baker and James McConnell did the right thing nearly forty years ago when they challenged marriage discrimination in Minnesota by taking the state to court. The ten couples of Marry Me Minnesota are doing the right thing now by following their lead. Please help support us in this effort.

  11. Anonymous Submitted by Anonymous on 11/27/2008 - 03:36 pm.
    Gay marriage isn’t civil rights civil debate on gay marriage
    Playing the race card on gay marriage

  12. Submitted by Judy Miner on 12/09/2008 - 09:05 am.

    Thanks, Doug – for this thorough review of the topic of why Minnesota is slow in taking on gay marriage legislation. I live in Wisconsin – and was wonder why our progressive state is not on the national forefront on this issue. Your blog gives me some insight into this.

    I watched the ‘Times of Harvey Milk ’84’ documentary film last week – in preparation to seeing Sean Penn this week in the new Hollywood release….a dramatic story in the fight for gay rights.

    This struggle has come a long way…..and maybe someday our grandkids will look back on this and wonder what all the fuss was about!… the way, best wishes on your 61st! JM

  13. Submitted by john henthorne on 06/21/2009 - 07:50 pm.

    I think marriage should be allowed for any two people who want to be married,
    Just a bit of info for the community burma’s bar in Kiester MN is open to gays frequenting the bar it’s a small but friendly bar prices are very reasonable not to much for entertainment but they do have a pool table juke box and dart machines stop in and say hi they serve a delicious home made pizza at a very reasonable price
    Open from 4 pm till close and even open on Sunday (southern MN is usually closed on Sundays in these small towns)stop in for Kiester days this weekend out door concerts Friday and Saturday

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