MSBA Diversity Committee

MSBA Human Rights Committee

MSBA Family Law Section

 

Minnesota’s Anti-Marriage Amendment

Recommendation and Report

Approved by the General Assembly – June 11, 2004

 

March 19, 2004

 

Recommendation

 

The Committees and Section listed above recommend that the Board of Governors of the Minnesota State Bar Association approve a resolution of opposition to proposed amendments to the Minnesota Constitution, which would prohibit legal recognition of same-sex couples and their families.  That resolution could read as follows:

 

“Resolved:  that the Minnesota State Bar Association opposes an amendment to the Minnesota Constitution to forbid the creation of legally-recognized relationships between persons of the same sex.”

 

Report

 

1.  Federal context

 

In 2003, members of the United States Congress introduced resolutions in the House of Representatives (H.J. Res. 56) and the Senate (S.J. Res. 26) proposing to amend the United States Constitution as follows:

 

Marriage in the United States shall consist only of the union of a man and a woman.  Neither this constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

 

In response, the Section of Individual Rights and Responsibilities and the Section of Family Law of the American Bar Association (ABA) jointly proposed that the ABA adopt the following two-part resolution:

 

RESOLVED, That the American Bar Association opposes any federal enactment that would restrict the ability of a state to prescribe the qualifications for civil marriage between two persons within its jurisdiction; and

 

FURTHER RESOLVED, That the American Bar Association opposes any federal enactment that would restrict the ability of a state to give effect to a civil marriage validly contracted between two persons under the laws of another jurisdiction.

 

On February 9, 2004, at its convention in San Antonio, the American Bar Association’s House of Delegates adopted this resolution.  Hence, the American Bar Association is on record as opposing the so-called “federal marriage amendment.”

 

2.  Minnesota’s anti-marriage amendment

 

On November 20, 2003, just two days after the Massachusetts Supreme Judicial Court ruled in the by-now well-known Goodridge decision that that Commonwealth’s constitution required that marriage licenses be available to all couples, different-sex or same-sex, on the same terms, State Representative Mary Liz Holberg and State Senator Michelle Bachmann announced they would initiate an effort to amend Minnesota’s constitution to forbid legal recognition of same-sex couples.  The text of Minnesota’s Anti-Marriage Amendment, which would amend Article XIII of the Minnesota constitution, and as slightly modified by the House Civil Law Committee on February 9, 2004, reads:

 

Sec. 13.  Only the union of one man and one woman shall be valid or recognized as a marriage in Minnesota.  Any other relationship shall not be recognized as a marriage or its legal equivalent.  (H.F. 2798; S.F. 2715)

 

As of this date, this language has been approved by the House Civil Law Committee, House Ways and Means Committee, and House Rules Committee.  It is widely expected to be approved by the full House of Representatives in late March.

 

It is clear from the face of this text that this amendment would constitutionalize current state law, codified at Minn. Stat. § 517.03, withholding from same-sex couples the opportunity to enter into civil marriages on the same terms that is currently the exclusive right of different-sex couples.  It is believed that this would be the first time that discrimination would be explicitly written into the state constitution. 

 

It is not fully clear from this text whether this proposed amendment would also prohibit legislative creation of something other than marriage for same-sex couples, e.g., “civil unions.”  However, it does appear that this is the intent of the proposal’s authors.  See, e.g., “State marriage bill gets first OK,” Minneapolis Star Tribune, March 10, 2004, at A1 (“The Civil Law Committee approved amendment language designed to ensure that any social contracts from future legislative action would stop short of the legal equivalent of marriage, effectively banning any future legalization of civil unions.”) 

 

3.  The State Bar responds

 

In response to the announcement of the effort to amend the Minnesota constitution, the MSBA Human Rights Committee in December, 2003, went on record in opposition to the as-yet unintroduced proposal, and submitted a statement to that effect to the House Civil Law Committee on January 28, 2004.  At its February 6, 2004, meeting, the MSBA Diversity Committee unanimously endorsed the following resolution:

 

Resolved:  that the MSBA Diversity Committee opposes any effort to amend the Minnesota Constitution to forbid the creation of legally-recognized relationships between persons of the same sex, and encourages the MSBA Board of Governors to take the same position.

 

On February 20, 2004, representatives of the Diversity and Human Rights Committees appeared before the MSBA Executive Committee to make a brief presentation regarding the Committees’ actions and the aforementioned resolution.  As a result, the Executive Committee agreed to refer the matter to the Board of Governors, as the Committees had requested.

 

On March 13, 2004, the MSBA Family Law Section overwhelmingly endorsed the aforementioned resolution, and on March 15, 2004, the MSBA Human Rights Committee adopted the language approved by the MSBA Diversity Committee. 

 

4.  MSBA membership responds

 

On February 4, 2004, the “MSBA Bar Talk,” a survey of Bar members regarding current legal topics in the news, included two questions that relate to this subject.  The first question read:  “I would support civil unions offering insurance and other benefits to same-sex couples, but not gay marriage.”  The second question read:  “I would support a state constitutional amendment banning gay marriage.”

 

This initial survey produced confusion in addition to vote tallies.  A plurality, 39% opposed the first question (“civil unions”), while a clear majority, 58%, opposed the second (“amendment”).  However, the MSBA received numerous replies from members expressing frustration that the construction of the questions offered those who supported equal marriage rights for same-sex couples no opportunity to voice that support. 

 

After receiving many comments along this line, on February 11, 2004, the next “MSBA Bar Talk” invited participants to agree or disagree to three statements:

 

(1)   I support gay marriage.

(2)   I support civil unions between gay couples.

(3)   I support legal benefits for domestic partners, but not civil unions or gay marriage.

 

45% of responding participants indicated they supported marriage rights for same-sex couples (38% opposed), and 50% supported civil unions (31% opposed), while 52% rejected the third statement, which eschewed both marriage and civil unions in favor of limited domestic partnership rights (just 14% supported). 

While hardly scientific, these surveys of Bar membership suggest that the majority of Bar members oppose the proposed constitutional amendment and favor some form of substantive recognition of same-sex relationships (marriage or civil unions) – the sort of recognition the amendment would forbid.

5.  MSBA leadership is critical today – and tomorrow

 

This unprecedented effort to persuade Minnesota’s citizens to insert discriminatory provisions into the Minnesota constitution is a matter of profound concern to the state’s legal community.  As attorneys, law students, and legal professionals, we understand that constitutions are intended to embody principles of democracy and to guarantee equal treatment under the law.  Appealing to the majority to impose restrictions on a minority by turning constitutions into embodiments of inequality is an abuse of democracy.  Moreover, many proponents of such measures fan fears of “activist judges imposing their arbitrary will.”  As people who have dedicated years to the study and practice of law, and as people who often take that practice into the judicial system and depend on the judiciary to deliver justice, legal professionals and their primary professional organization cannot turn a blind eye to the implications of this damaging proposal. 

 

A constitutional prohibition on the recognition of “marriage or its legal equivalent” for same-sex couples works hardships on the clients many in our profession serve.  Attorneys practicing in such areas as family law, estate planning, real estate, tax, and beyond come into contact with people across Minnesota who experience complex legal challenges because they are currently unable to enter into a legally-recognized relationship with a same-sex partner.  Over the years, visionary work by Bar members has opened certain opportunities for such people to enjoy the same, or similar, rights as legally-recognized couples and has helped move Minnesota law forward and away from confusion.  This amendment, if passed, could erase that progress and shut down any rational public policy discussions regarding workable solutions to the legal inequities same-sex couples face in the absence of a legally-recognized foundation for their family relationships.

 

Moreover, the question of whether same-sex couples should be permitted to form legally-recognized relationships affects members of the Bar not merely because they may represent affected couples, but because those Bar members who are, themselves, in same-sex relationships experience these inequities directly.  The Minnesota State Bar Association has historically been responsive to the concerns its gay, lesbian, bisexual, and transgender members have raised with respect to the need to promote fundamental equality and fairness in the legal profession, and has been instrumental in fostering a legal community in Minnesota that is deeply appreciative of its own diversity, including its diversity of sexual orientation.  The MSBA’s leadership on these issues has been demonstrated, for instance, by its important endorsement of the 1993 human rights amendment, which inserted “sexual orientation” into the Minnesota Human Rights Act.  MSBA’s leadership is no less necessary – and in fact, is crucial – today in preserving the Minnesota constitution from those who would insert into it this with mandate of inequality. 


Finally, this topic is certainly not likely to go away.  On May 17, 2004, the Commonwealth of Massachusetts is expected to begin issuing marriage licenses to same-sex couples.  Developments in communities across the country have brought additional attention, and additional litigation, to the questions that advocates of civil marriage rights for same-sex couples have raised.  Further developments may well follow.  It is likely that the issue will play a role in the presidential election through November, 2004, and may well be revived in 2005 and beyond if the Minnesota Legislature defeats this proposal in its current session.  For these reasons, it is critical that the MSBA come out in opposition to this amendment today, and stand by its position tomorrow, by adopting the proposed resolution in opposition to Minnesota’s anti-marriage amendment.

 

Respectfully submitted,

 

 

 

MSBA Diversity Committee

MSBA Human Rights Committee

MSBA Family Law Section