Commentary

Marriage amendment would move our Constitution backward, not forward

By David Fisher

David Fisher is executive director of the Corporate Institute at the University of Minnesota Law School and a former commissioner of the Minnesota Department of Administration. He sits on the board of Growth & Justice, a self-described progressive think tank that focuses on state and local tax and budget issues.

Marriage is important. So say our social mores. Our laws. Our faiths. Demeaning this institution is the proposed Minnesota constitutional amendment to be voted on Nov. 6 that would limit the right to marry.

In our society, marriage determines whether we can insure a loved one, visit a loved one in intensive care, pass onto a loved one an inheritance, and whether our loved one — if not a citizen — can be free from deportation. Marriage is how our society recognizes and supports the capacity to love and protect family.

And marriage represents much more than legal rights.

It is the way our society has chosen to represent commitment and devotion between individuals: a union of spirit and partnership. No domestic partnership law, no compact, and no pledge between two people is recognized by our society in this way. Nor are they accepted by society in this way.

Borrowed from Judeo-Christian creed, enshrined in our U.S. Declaration of Independence, and protected in our federal and state constitutions are the rights of every individual to "life, liberty and the pursuit of happiness." It wasn't always so — in less enlightened times we used our laws to deny women the right to hold property or to vote; we denied consenting adults of mixed race the right to marry or even date; we rejected in general fair and equal rights for blacks, Jews, Asian-Pacific Islanders and Native Americans; we tolerated and encouraged child labor in sweat rooms and heavy manufacturing. We denied workers a fair wage for work done.

We've come a long way in the last 100 years, and in each of these examples above we enacted laws — and constitutions — that rolled back intolerances of the past to embrace fellow citizens as productive, vigorous members of society, and of our workforce.

Now, today, is the first time in this state that we are asked to look forward to the past — to resurrect exclusionary, discriminatory bigotries and enshrine them in our Constitution — to forever deny ourselves and our future generations the ability to see and embrace tolerance. To deny us the ability to promote, protect and embrace people who make significant positive contributions to our general and economic welfare.

It's said that the Bible, and specifically Leviticus 18:22 as well as interpretations of Romans 1, Matthew and Luke, support this constitutional amendment placing limits on marriage. Yet, not even the Ten Commandments are enshrined in U.S. or state constitutions. These codes are a matter of statute, passed and amended from time to time by legislative bodies. Constitutions, says Prof. Mark Osler of the St. Thomas University Law School, are not tools to limit individual freedom but rather to increase and protect individual freedom against government and majority rule — a limitation on the very type of government intrusion we now are being asked to apply.

I've heard it said, simply put, that marriage must be reserved for the procreation of our species; that is, the conception, birth and rearing of children. The logical extension of this argument is that my wife and I, now married 40 years and well past childbearing years (I assume!), are living a marriage that has become a shell of some kind, the principal purpose of which is only intimacy, devotion, commitment and partnership, but not childrearing. A marriage that merely embraces "life, liberty and the pursuit of happiness." Such an argument implies that the marriage of my friends, Holly and Bob, who do not wish to or cannot conceive, should not have the right to be married. It implies that my marriage somehow expired once our child-bearing and -rearing years had come to an end. And it means that friends of mine — consenting, intelligent, contributing adults who happen to be of the same sex — can and must be denied the support our society confers by the recognition of marriage.

And all this, even though banning such pairings does not, and cannot, harm or even touch anyone else. A desire by consenting adults to embrace intimacy, devotion, commitment and partnership — to pursue happiness — can only strengthen this institution, not fail it. And, as a matter of fact, it's nobody's business at all but to those consenting.

To those who say extending marriage benefits to same-sex couples would be costly for employers, I say look at reality. It's a done deal. Businesses have embraced GLBT employees as a valuable workforce, and have already extended many benefits as a means to attract and retain them. The extension of these benefits doesn't go far enough — no business can confer rights to visit a loved one in intensive care, to protect a loved one from deportation, or allow a loved one to inherit. For this, we need to reject the constitutional amendment stating that marriage is only between a man and woman.