MPR News Primers

MPR News Primer: The marriage amendment

by Paul Tosto, Minnesota Public Radio

ST. PAUL, Minn. — Should the union of one man and one woman be the only definition of legal marriage? Minnesota has debated that question for more than 40 years. Soon, voters will have the chance to settle it. On the November ballot, they will be asked if they want marriage written into the state constitution as between one man and one woman.

What is Minnesota's history on same-sex marriage?

Minnesota's earliest statutes banned "imbeciles," epileptics and 14-year-old girls from marrying, but stayed quiet on the question of gender.

In 1971, the Minnesota Supreme Court ruled two men could not legally marry. The state's marriage laws did not specifically prohibit same-sex unions then. But the court wrote it was "unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days," would have viewed marriage as anything other than between a man and woman.

In 1977, the Minnesota Legislature amended the statute to add "between a man and a woman" after the phrase "Marriage, so far as its validity in law is concerned, is a civil contract."

Minnesota lawmakers wrote a same-sex marriage ban into state law in 1997 after Congress passed and President Bill Clinton signed the Defense of Marriage Act, which kept the federal government from recognizing same-sex marriage and let states do the same.

In 2003, same-sex marriage opponents began pushing for a Minnesota constitutional change after the Massachusetts Supreme Court overturned that state's marriage ban. Constitutional changes are harder, however, and repeated efforts failed.

In 2010, Republicans won historic majorities in the Minnesota House and Senate. In control, those GOP majorities passed a bill to let voters this fall decide the Minnesota constitutional question on marriage, bypassing DFL Gov. Mark Dayton.

The Minnesota Legislative Reference Library keeps an updated page on the history of same-sex marriage.

What are the arguments for the amendment?

Supporters of a constitutional ban on same-sex marriage argue the state has a compelling interest in defining marriage as between one man and one woman. "Protecting the interests of children is the primary reason that government regulates and licenses marriage in the first instance," and "children do best when raised by their mother and father," says the group Minnesota for Marriage.

Without a constitutional ban, the group warns lawmakers and activist judges could legalize same-sex marriage eventually, and that law could be used as a weapon against those who disagree.

"Churches and religious organizations can lose their tax exemptions and be forced to abandon their core moral principles or face punishment," Minnesota for Marriage writes. "Individuals, small businesses and groups will be subjected to lawsuits and regulatory action if they refuse to condone the 'new' understanding of marriage."

(Churches could not be forced to perform same-sex ceremonies; some states that allow same-sex marriage have that written into law.)

Minnesota for Marriage also argues that "children at a very young age will be taught in school that marriage is between any two adults, no matter what they have been taught at home, in church or in their ethnic traditions. Under the law, those who believe otherwise will be treated as the legal and moral equivalent of bigots."

What are the arguments against?

Opponents say a constitutional amendment defining marriage as between a man and a woman would make it impossible for same-sex couples to ever have the same rights under law as other couples.

Current law defining marriage as only for heterosexuals already creates multiple problems for same-sex couples when it comes to joint finances, parenting, seeing a dying partner in the hospital and other fundamentals of a committed relationship, they argue.

"We believe marriage and family are about love and commitment, working together, bettering the community, raising children, and growing old together. We believe in a Minnesota that values and supports strong families and creates a welcoming environment for all Minnesota families to thrive," writes Minnesotans United for All Families, a group seeking to defeat the amendment.

Others argue a constitutional ban would be the equivalent of laws that once banned interracial marriages, allegedly for the betterment of society.

What is happening in other states?

State laws on the issue vary.

Some have a legislative or constitutional ban on same-sex marriage. Others allow civil unions and treat same-sex couples as spouses when it comes to state rights and benefits. Six states issue marriage licenses to same-sex couples, and Washington State in February agreed to let same-sex couples marry.

The ground continues to shift on the issue. The biggest change came in February when a federal appeals court called California's same-sex marriage ban unconstitutional. While the decision affects only California, it has opened the door to a potential review by the U.S. Supreme Court.

What are the odds of Minnesota's amendment passing?

A January 2012 poll showed about 48 percent of voters supporting and 44 percent opposed. But the poll also found "a strong majority consensus" favoring "legal recognition of gay couples when the question includes whether civil unions should be allowed," with 71 percent in favor of some legal recognition of gay couples.

In Minnesota, a constitutional amendment is approved if a majority of all of the people voting in the election vote to ratify it. So if you vote but skip the constitutional question, you're effectively voting no.

It is worth noting that even if voters don't approve the constitutional amendment, Minnesota's legal ban on same-sex marriage doesn't go away. Gay marriage will still be illegal here.

How has the definition of marriage changed over the years?

For much of Minnesota's history, marriage between same-sex couples was not banned. For decades, though, it was illegal for anyone who was an epileptic to marry; early on, the law let girls as young as 15 marry; by 1975, language prohibiting imbeciles, the "feeble minded" or insane was struck from the statute.

Marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, "whether the relationship is by the half or the whole blood," has long been banned, although by 1997 the law exempted marriages "permitted by the established customs of aboriginal cultures."

Is marriage a civil right?

Yes, at least when it comes to interracial marriage. The U.S. Supreme Court in a 1967 ruling declared bans on interracial marriage unconstitutional. At that point, 16 states banned interracial marriage as in the public interest. The Supreme Court ruled those laws deprived interracial couples of "liberty without due process" and violated the Constitution's equal protection clause.

The Court wrote:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival ... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

The Supreme Court hasn't taken on the specific issue of gay marriage as a civil right. The Court had a chance to take on the same-sex marriage issue with the Minnesota case in 1972, five years after striking down interracial marriage bans. Instead, it turned back the opportunity "for want of a federal question."

The February appeals court ruling overturning California's constitutional marriage ban may force the issue. Supporters and opponents alike say they want the U.S. Supreme Court to settle the matter once and for all.