Oh, so when it's marriage, they object

  • Article by: JASON LEWIS
  • Updated: May 14, 2011 - 8:38 PM

Look, this wouldn't be the state's first recent constitutional question, but there's reason to believe that it might be one of the more necessary ones.


Republican Sen. Warren Limmer, the amendment’s chief author, spoke to DFL Sen. Linda Berglin during debate before the vote.

Photo: David Joles, Star Tribune

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Funny, but I don't seem to recall the hand-wringing and consternation over proposed constitutional amendments in years gone by. Since 1996, Minnesota voters have actually amended the state's constitution seven times, and nary a peep. In fact, the last two ballot questions -- dedicating hundreds of millions towards environmental, arts and transportation spending -- were somehow seen as sterling examples of allowing voters to choose the laws under which they live.

This year, however, with four ballot measures being considered, you'd think the sky was falling. Republicans have put forth plans for a couple of tax-and-spend limitations as well as a voter-identification initiative. But hell hath no fury like a domestic partner scorned, so the amendment that's really got the cultural elites up in arms is the one that defines marriage as "only a union of one man and one woman."

Under state law, same-sex marriage is currently prohibited in Minnesota, and previous court rulings have opted for traditional marriage as well. Nevertheless, what proponents fear is what happened a state away when the Iowa Supreme Court arbitrarily struck down a Defense of Marriage Act, or DOMA. Apparently unable to control their legislative appetites, the justices (three of whom have been recalled) found that gay couples were "similarly situated compared to heterosexual persons" with respect to the purposes of the law governing marriage.

Moreover, plaintiffs need not be in identical circumstances for Iowa's bizarre new test of legal uniformity to apply. If so, the court asserted, "nearly every equal protection claim could be run aground under a threshold analysis ... rather, equal protection demands that the law itself must be equal." This is breathtaking activism.

Especially so given that the explicit purpose of DOMA was to make clear that same-sex unions were not "similarly situated." The Iowa law, not unlike Minnesota's, made no classification on the basis of race (the real intent of "equal protection"), gender or even sexual preference as long as civil marriage consists of two individuals of the opposite sex. That is, anyone may marry under the law.

Yet for all this, traditional-marriage types are even more troubled by federal District Judge Vaughn Walker's fanciful ruling. Walker said that California voters failed "to advance any rational basis" for banning same-sex unions under that state's Proposition 8. If DOMA (or for that matter, a state constitutional amendment) is overturned at the federal level because it discriminates against "the right to marry and the right to equal protection under the law," as plaintiffs contend, then no state will be able to make a "public policy exception" to gay marriage recognized in any other.

That's exactly what same-sex union advocates, such as Sen. Scott Dibble, D-Minneapolis, are hoping for. He married his partner in California after the Golden State's high court found a "right" to gay marriage and struck down a previous proposition, but the union has no legal status here because of Minnesota law. A state constitutional amendment might protect traditional marriage from Minnesota courts (though there's no guarantee), but Walker's handiwork clearly demonstrates that no local initiative would stand in the way of an activist federal bench.

Of course, there is no constitutional "right" to civil marriage -- for heterosexuals or homosexuals. That's why there are laws against bigamy and why some libertarians say government should get out of the marriage business entirely. In the meantime, family law should remain a province of the states -- no matter what side of the issue you're on.

Let's remember, the law by definition discriminates -- against smokers, drug users, loan sharks. But heretofore, as long as it was applied with equal vigor, it passed constitutional muster. No more, now the "law itself must be equal." So what to make of all those taxpayers who by the dint of hard work and sacrifice find themselves in a higher tax bracket compared with their neighbors? Sounds like an equal protection claim to me -- which, when you think of it, would be about the only good thing coming out of this judicial nonsense.


Jason Lewis is a nationally syndicated talk-show host based in Minneapolis-St. Paul and is the author of "Power Divided is Power Checked: The Argument for States' Rights" from Bascom Hill Publishing. He can be heard locally from 5 to 8 p.m. weeknights on KTLK Radio, 100.3-FM.

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