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Sorting out the reasoning in Appeals Court’s gay-marriage ruling

Let’s start at the case’s beginning — and then go further back, to a much-cited 1972 Minnesota Supreme Court opinion.

Yesterday's Appeals Court decision left more questions than answers for both sides of the state's gay marriage debate.
CORBIS/Philip James Corwin
Yesterday’s Appeals Court decision left more questions than answers for both sides of the state’s gay marriage debate.

Hey MinnPost Help a sister out? I heard that yesterday the Court of Appeals made a major decision  concerning gay marriage in Minnesota, but there are so many headlines about lawsuits and appeals and amendments and referendum campaigns and whatnot, Ive lost track.

It certainly is twisted, Sister, but we’ll try. How about we start in the beginning?

In 2010, three couples applied for and were denied marriage licenses by the Hennepin County Local Recorder, whom they then sued, along with the state, asserting a variety of legal theories, all of which charge the 1997 Minnesota Defense of Marriage Act (DOMA) is unconstitutional.

The district court judge dismissed the case [PDF], stating that “same-sex marriage will not exist in this state unless and until the Minnesota Supreme Court overrules its own decision in Baker,” — a 1971 same-sex marriage case we will get to momentarily — “or the state Legislature repeals the state DOMA.”

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The plaintiffs, who incorporated as the nonprofit Marry Me Minnesota, appealed. Their arguments and those posed by a host of interested groups that filed friend-of-the-court briefs were heard in October.

Three findings upheld
Yesterday, the three-judge panel issued an opinion [PDF] agreeing with three of District Court Judge Mary DuFresne’s findings: That the state, which does not issue marriage licenses, is not a proper defendant to the suit; that Minnesota’s DOMA does not violate the constitution’s right to freedom of conscience or its Single Subject Clause.

(We’d explain that last one, but it’s not terribly relevant and we want to keep you reading.)

The jurists did conclude the court should allow the plaintiffs to make the rest of their case: That DOMA violates the state constitution’s equal protection, due process and freedom of association clauses.

“Under the Minnesota Constitution,” they wrote, “‘No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.'”

Unless Hennepin County appeals the ruling to the state Supreme Court, DuFresne will be compelled to reopen the proceedings. It’s a long shot, but it could be argued before the marriage amendment is voted on next fall.

OK, now Im confused again. The trial court judges original ruling said there was already a precedent-setting gay-marriage case. Doesnt that settle things?

Not according to the judges who issued yesterday’s opinion, and if there’s a shot heard round the world in the ruling, it is that.

The 1970 lawsuit
In 1970, two gay activists studying at the University of Minnesota applied for a Hennepin County marriage license and were denied. Richard Baker and James Michael McConnell sued, ultimately pushing their claim all the way to the U.S. Supreme Court.

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The 1971 state Supreme Court opinion rejected the men’s arguments, which were based in part on a then-new ruling overturning an anti-miscegenation law. The court cited a variety of reasons, including the centrality of procreation and child-rearing to marriage’s constitutional protections.

The justices probably were not trying to be funny when they noted that under this concept of marriage, childless heterosexual unions presented only a “theoretical imperfection.”

The U.S. Supreme Court dismissed the case in 1972 without further argument “for want of a substantial federal question.” That single sentence has maddened virtually everyone who has had reason to cite Baker v. Nelson, pro or con, in the four ensuing decades.

A much-cited case elsewhere
Maddeningly truncated or not, Baker remains the high court’s only statement to date on homosexual marriage. Among other cases, ithas been name-checked in cases in Nebraska, Washington, Florida, Indiana and, most notably, the lawsuit over California’s Proposition 8.

Of Baker, yesterday’s appeals court ruling said, essentially, that was then and this is now, on top of which, the high court never actually ruled. Or, in their jargon:

“The [state] supreme court in Baker specifically stated that there was no guidance from decisions from the United States Supreme Court regarding whether the right to marry is a fundamental right of all persons and whether restricting marriage based solely on sex is ‘irrational and invidiously discriminatory,” the judges wrote.

“The Supreme Court has provided guidance since Baker indicating that moral disapproval of a class because of sexual orientation cannot be a legitimate government purpose that equal-protection requires.”

Plus, Minnesota’s test for determining whether equal-protection rights have been violated — that is, whether there is a compelling reason for an exception — is more stringent than the federal test, the appeals court noted.

So this is the potential shot heard round the world?

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Mixed views on importance
There are plenty of smart, pro-same-sex marriage groups working to defeat the amendment who aren’t convinced it will have major ripples and fear it might just muddy the waters.

But there are others who were popping at least metaphorical corks last night, including Minneapolis attorney Marshall Tanick, who authored an amicus brief in support of the claimants. “It’s the death knell for Baker,” he said in an interview last night. “In my judgment, Baker is buried.”

How deep? “It represents the end of Baker representing an obstacle to same-sex marriage arguments.”

Which is why, according to the groups that oppose same-sex marriage, voters should settle the argument once and for all by amending the state constitution. 

“This is exactly the type of case that has resulted in same-sex marriage being imposed in other states and highlights the need to enact the Marriage Protection Amendment next November,” said Jason Adkins, executive director of the Minnesota Catholic Conference and vice chairman of Minnesota for Marriage. “Marriage will now go on trial in Hennepin County and Minnesota citizens will be at the mercy of a judge to maintain our centuries-long definition of marriage.

So is that true?

Is what true, that activist judges are running roughshod over the constitutions? That marriage is imposed? That we have viewed it the same way for centuries?

Those are political questions, Sister, and well above our pay grade. Still, stick around for more untwisting in the months to come.