MPR News Primer: Same-sex marriageby Paul Tosto, Minnesota Public Radio
Last updated May 14, 2013
How should Minnesota law define marriage? The state has debated that question for more than 40 years. The law had defined marriage as the union of one man and one woman. But when voters in November were asked to write that into the state constitution, they rejected it.
That election also returned majority control of the Minnesota House and Senate to Democrats, setting off the movement to reverse current law and make same-sex marriage legal.
What is Minnesota's history on same-sex marriage?
Minnesota's early 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 here failed.
In 2010, Republicans won historic majorities in the Minnesota House and Senate. In control, those GOP majorities passed legislation to let voters decide the Minnesota constitutional question on marriage, bypassing DFL Gov. Mark Dayton.
In November, voters rejected a constitutional gay marriage ban at the polls and also elected DFL majorities to the House and Senate, allowing Democrats to reclaim control of the Legislature.
With the amendment dead, some DFL lawmakers pushed to end the legal ban on same-sex marriage. It remains unclear, though, if that's what most Minnesotans want. A spring 2013 poll showed a majority still don't support same-sex marriage.
What are the arguments against legalizing same-sex marriage?
Same-sex marriage opponents 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," and "children do best when raised by their mother and father," says the group Minnesota for Marriage, which pushed for a constitutional ban.
The group has warned that people, small businesses and other groups will face lawsuits and "regulatory action" if they refuse to accept a law legalizing same-sex marriage, although an MPR News analysis last fall found those claims misleading.
Opponents have also argued that religious leaders would be forced to perform same-sex ceremonies. Supporters, though, say that's not the case and note the bill Dayton signed would permit churches and religious groups to choose who can be married in their faith without being sued.
What are the arguments for legalizing same sex marriage?
Supporters say the law defining marriage as only for heterosexuals created 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 that helped kill the effort to write a same-sex marriage ban into the constitution.
What is happening in other states?
State laws on the issue vary.
Some have a legislative or constitutional ban on same-sex marriage. North Carolina in 2012 became the 30th state to adopt a constitutional ban. Others allow civil unions and treat same-sex couples as spouses when it comes to state rights and benefits.
On May 7, Delaware became the eleventh state to allow same-sex marriages, according to the National Conference of State Legislatures. Washington, Maryland and Maine have also approved same-sex marriage laws in the past year.
The bill Dayton signed will allow same-sex marriages starting August 1, making Minnesota the 12th state to sanction gay marriage and the first in the Midwest to do so through a legislative vote rather than the courts.
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 (and remain banned under the same-sex marriage law), although by 1997 the law exempted marriages "permitted by the established customs of aboriginal cultures."
The definition of marriage as "between a man and a woman" was added in 1977.
The law ends that, changing the definition to "between two persons" and removing language in prior law that says marriage can only be between people of the opposite sex.
State budget officials predict it will cost taxpayers annually about $688,000 in additional benefits for state employees and their families, MPR's Tim Pugmire reports. "The state will also see a revenue boost of about $190,000 from same-sex couples buying marriage licenses."
However, when it comes to spousal benefits for Social Security, taxes, health and other federal programs, Minnesotans would still be bound by the restrictions in the Defense of Marriage Act, which prohibits federal agencies from considering same sex marriage valid even in states where it's legal.
Is marriage a civil right?
Yes, at least when it comes to interracial marriage. The U.S. Supreme Court in a 1967 ruling declared laws forbidding 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 had a chance to take on the same-sex marriage issue with the Minnesota case in 1972, five years after it struck down interracial marriage bans. Instead, it turned back the opportunity "for want of a federal question."
The ground shifted last year, though. A 2012 appeals court ruling overturning California's constitutional marriage ban effectively forced the Court's hand.
But it was clear during oral arguments in March, the justices are as divided as the public on this issue. Whatever they decide on the law, it won't end the debate.