Incredible though it seems following $15 million worth of campaigning over 18 months, there’s still a broad swath of the Minnesota electorate that confesses to finding the proposal to amend the state constitution to outlaw same-sex marriage confusing.
Especially compared with the text that will appear on ballots about the voting amendment, the question itself is pretty straightforward:
“Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?“
Still, a third of likely voters recently surveyed by a team at St. Cloud State University said they find the question confusing.
It’s a good bet others are still perplexed by the difference between a “yes” vote and a “no” vote, the process — and implications — of amending the Minnesota Constitution, its relationship to state and federal laws and the impact of a U.S. Supreme Court decision on any of the several marriage rights cases it might hear this year.
Same-sex marriage will be illegal in any case
And so it would seem that one last primer is in order. For starters, whichever side prevails Tuesday — and whenever that is known — same-sex marriage is illegal in Minnesota today and will be on Wednesday. It has been since 1997, when lawmakers passed a state Defense of Marriage Act (DOMA).
And because of the 1996 federal DOMA, which defines marriage for the purpose of federal benefits as the union of one man and one woman, Minnesota is not obligated to recognize same-sex marriages performed in states where they are legal.
So why do proponents want to amend the state constitution if gay marriage is already outlawed? Because increasingly courts and state legislatures around the country have proven willing to consider allowing the unions. There are four states where the issue of same-sex marriage will be put to voters this year; a win by gay-right advocates in Minnesota, Maine, Maryland or Washington would become the first.
By contrast, a constitutional ban would enshrine opposition, which is has faltered dramatically in recent years. Popular support for same-sex marriage has grown, and younger voters are particularly comfortable with the notion. Acting now to change the constitution would tie those younger hands going forward.
Simple majority vote to amend constitution
In Minnesota, a simple majority — 50 percent plus one — is required to approve a ballot question. Any ballot cast that does not include a vote on the question is counted as a “no” vote. If a ban is enacted, the same no-by-default rule will make reversing the vote tough.
Right now, polls give the vote-no forces a slender lead. Poll-watchers canvassed by MinnPost in recent days are fretting about everything from the weather — good weather is believed to help DFLers — to the question’s placement on the ballot.
If it appears at the end, below judicial and municipal races fewer people vote in, some speculate the number of no-by-default votes will skyrocket. At least on the ballot prepared for MinnPost’s address, the constitutional questions appear front and center.
If the amendment is approved, there are three routes for undoing it. The first would be for lawmakers in both legislative chambers to pass another bill again putting the issue before the voters, who could pass a second amendment repealing the first. A good example: The institution and repeal of Prohibition.
Second, and not likely right now, the Minnesota Supreme Court could rule that the amendment violates the U.S. Constitution. And finally, the U.S. Supreme Court could rule that same-sex marriage bans are unconstitutional.
Several options for U.S. Supreme Court
Several weeks into the current term, the high court has yet to announce which of the several same-sex-marriage cases wending their way through the system it might hear. In addition to a suit filed in the wake of California’s 2008 Prop 8 vote, the justices may consider as many as six different decisions regarding the federal DOMA. They can choose to hear one, all or none of them, or do nothing and accept or reject the cases at a later date.
Chances are good, though, that the issue will make this year’s docket because the number of appellate court decisions begging for review is mounting. On Oct. 18 the Second U.S. Circuit Court of Appeals in New York voted 2-1 to declare DOMA unconstitutional. It was the second such decision this year; in May, the First Circuit in Boston also ruled the law discriminatory.
The legal issue in the DOMA cases is whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can legally marry. The Obama administration stopped defending the law in court in early 2011. The GOP-controlled U.S. House of Representatives has filed the legal appeals to the high court.
If the justices take up any of the cases, it will be the first time they will have addressed same-sex marriage head-on since their predecessors declined to hear a 1971 Minnesota case, “Baker v. Nelson,” ” for want of a substantial federal question.”
The Benson v. Alverson case
There is one Minnesota case that could make its way to the state Supreme Court, albeit long after the outcome of Tuesday’s vote and the federal Supreme Court’s docket is set. In May 2010, three same-sex couples filed a lawsuit in Hennepin County District Court, arguing that the state DOMA violates due-process and equal-protection rights.
In March 2011, the trial-court judge dismissed the lawsuit. Two months later, the Legislature passed its proposal to send the issue to the voters. Gov. Mark Dayton quickly issued a symbolic veto.
In July 2011, the plaintiffs in Benson v. Alverson took their case to the Minnesota Court of Appeals, which in January sent the case back to the district court, where District Court Judge Mary Steenson Dufresne began hearing motions in September.
If voters approve the ban here, Minnesota will become the 32nd state to prohibit same-sex marriage by amending its constitution.