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

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.”

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.

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?

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.

Comments (5)

  1. Submitted by Paul Landskroener on 01/24/2012 - 10:19 am.

    Well done, but I must quibble with your concluding remark that the question of whether “we have viewed [marriage] the same way for centuries” is a political question.

    While history in large part involves interpreting the than the record, the record is datum that gets interpreted and is what it is. While it is true that virtually all (and maybe literally all, for all I know) Western civilizations have recognized only man-woman legal marriages (until the last couple of decades), the predominant social, political, and economic meanings, purposes, and functions of marriage have indisputably changed dramatically over the centuries.

  2. Submitted by Gerald Abrahamson on 01/24/2012 - 10:21 am.

    The CURRENT *Christian* definition of marriage is “one man and one woman”. Hmmm, what about OTHER religions? OUCH !!! They have different definitions of marriage. First Amendment, US Constitution–no establishment of religion by the govt. Note how no one mentions the “biblical” definition of marriage: one man and MANY women (ouch!!)–and that practice continued for thousands of years (not merely a few centuries).

  3. Submitted by James Hamilton on 01/24/2012 - 10:31 am.

    Mr. Tanick is a bright man, but he’s lost his objectivity if he reads the Court of Appeals’ decision as the death knell for Baker. Those who would accuse this panel of activism are equally guilty of wishful thinking. The Court of Appeals’ decision does not dictate a result, IMO. It is a careful and well-reasoned analysis of the state of the law, which remanded the case for reconsideration consistent with its understanding of the law at this point.

  4. Submitted by James Hamilton on 01/24/2012 - 10:55 am.

    The heart of the issue at the federal level is laid out in this quotation from Baker:

    “Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), upon which petitioners additionally rely, does not militate against this conclusion. Virginia’s antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination. As Mr. Chief Justice Warren wrote for the court (388 U.S. 12, 87 S.Ct. 1824, 18 L.Ed.2d 1018):

    “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L. Ed. 654 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations./5/”

    Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”

    The ulitmate question: Is discrimination on the basis of sexual orientation “invidious”? Pick your definition:

    in·vid·i·ous
       [in-vid-ee-uhs] Show IPA

    adjective
    1.
    calculated to create ill will or resentment or give offense; hateful: invidious remarks.

    2.
    offensively or unfairly discriminating; injurious: invidious comparisons.

    3.
    causing or tending to cause animosity, resentment, or envy: an invidious honor.

    4.
    Obsolete . envious.

    I’m going with 2.

    Whether sexual orientation is volitional or physiological is irrelevant. We are either free to choose with whom we will spend our lives and share the many rights and responsibilities conferred by marriage under our laws, or we are not.

    It matters not whether the discrimination is based on color, religious belief (an unavoidable aspect of the opposition to gay marriage) or what any one of the rest of us think is the “right” way for others to live their lives. Our laws permit two people to obtain these rights and accept these responsibilities in only one way: marriage. Even if that were to change, separate is not equal in this context, any more than it was when color was the issue.

    What the U.S. Supreme Court will do with the term when it’s finally forced to confront the issue is anybody’s guess. Some on the court will no doubt hold that neither the Framers of the Constitution nor the justices who wrote Skinner ever had same sex marriage in mind, regardless of the words they used. Since I can’t call up their ghosts to discuss the matter further, I’ll opt for relying on the words.

  5. Submitted by Thomas Swift on 01/24/2012 - 10:58 am.

    This is actually very good news for everyone.

    Because every man and woman in the state of Minnesota are granted the right to marry under the same provisions and with the same proscriptions, to decide that DOMA disfranchises or deprives a gay man or woman of any of the rights or privileges secured to any citizen thereof, they are going to have to prove that a gay man or woman is fundamentally (genetically) different than a regular man or woman.

    It’s the case that the gay rights crowd has feared might come before SCOTUS, because it’s a hands-down loser for them.

    To add to the problems the MN gay rights crowd faces, they have to somehow overcome the following catch-all caveat:

    “unless by the law of the land or the judgment of his peers.”

    I’m thinking this decision will settle a lot of questions.

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