Same-sex marriage lawsuit could set back gay rights effort

A lawsuit filed last month argues that the state’s Defense of Marriage Act violates Minnesota’s Constitution by denying same-sex couples freedom of conscience and equal treatment under the law.

by Elizabeth Dunbar - MPR News

St. Paul, Minn. âÄî A lawsuit seeking to end Minnesota’s ban on same-sex marriage faces tough odds in court and lacks the broad support that propelled successful efforts in five other states. The lawsuit, filed last month in Hennepin County by attorney Peter Nickitas on behalf of three couples, challenges the state’s Defense of Marriage Act. It argues the law violates Minnesota’s Constitution by denying same-sex couples freedom of conscience and equal treatment under the law. Some state and national gay rights leaders fear the lawsuit wonâÄôt succeed in changing the law âÄì and instead attract the kind of attention they’d rather avoid, especially in an election year. “There are both legal and political reasons to believe that this lawsuit is a very risky roll of the dice,” said Dale Carpenter, a University of Minnesota law professor who supports same-sex marriage. The state will elect a new governor in November, and voters will have a chance to change every seat in the Legislature, now controlled by Democrats. Some political analysts say it could be a good year for Republicans, as public approval ratings for President Barack Obama and the Democratically-controlled Congress dip. Gay rights supporters expect conservative groups will try to use the gay marriage issue âÄî still divisive in Minnesota and many other states âÄî to put Democratic incumbents on the spot and win votes for candidates who oppose same-sex marriage. “To the extent that this lawsuit fuels dissatisfaction with the incumbents and anyone else supportive of gay marriage, it will actually set us back politically,” Carpenter said. One national group opposed to same-sex marriage has already launched a $200,000 ad campaign targeting gubernatorial candidates who support same-sex marriage. On Thursday, a national conservative organization announced plans to intervene in the legal case to argue that Minnesota’s Constitution doesn’t allow for same-sex marriage. Across the country, state laws on same-sex marriage range from fully allowing it to strictly prohibiting it by state constitutional amendment. Minnesota is among a handful of states in the middle, with a ban on same-sex marriage but no constitutional amendment defining marriage as exclusively between a man and a woman. Groups pushing to make same-sex marriage legal can look to Iowa, where the state Supreme Court overturned the state’s ban. But the lawsuit in Minnesota faces different challenges. The Minnesota Supreme Court ruled against same-sex marriage in 1971 — a precedent that didn’t exist in any of the states that have legalized same-sex marriage. That decision would have to be overturned by the current Minnesota Supreme Court, where four of seven members were appointed by Republican Gov. Tim Pawlenty. “If they reaffirm that decision, there’s a danger that they do it strongly,” said Amy Johnson, executive director of OutFront Minnesota, a gay rights group that opposes the lawsuit. Its lobbyists have asked state legislators to lift the ban by repealing the 1997 Defense of Marriage Act. The act bans same-sex marriage and prohibits the state from recognizing same-sex marriages performed in other states. Doug Benson, a plaintiff in the lawsuit, said he was disappointed that OutFront Minnesota criticized the action. He said simultaneous efforts targeting more than one branch of government is the best way to achieve the desired result. “We think it’s necessary to utilize every opportunity that we have to advance full equality,” Benson said. “We wouldn’t have gone forward if we didn’t think we had a chance to win.” After the suit was filed, more than 1,000 people joined Marry Me Minnesota âÄî the group raising funds for the legal fight âÄî on Facebook. But the effort hasn’t received national backing. “There are certain states where I think people would just rather do anything than try to file a lawsuit of this type before their supreme court, depending on its makeup,” said Mark Kende, a law professor at Drake University in Des Moines, Iowa. Evan Wolfson, executive director of the national group Freedom to Marry, sympathized with the couples who filed the Minnesota lawsuit. But he said filing a lawsuit in every state may not be the most effective way of giving gay and lesbian couples the right to marry. âÄúYou also have to have justices who are open to doing the right thing and you have to be able to prevail,” he said. “It doesn’t really do anybody any good to go to court and risk a loss that will not advance your case and will hurt the chances for other couples âÄî even if you’re 100 percent right, as these people are.” Wolfson gave two examples of states where lawsuits were filed over the objections of some in the gay rights community: New York and Arizona. Both lawsuits failed, and it became more difficult to change the law after that. Activists in Minnesota and other states where lawsuits have little chance should press elected officials to change the law, he said. “Going to court is not the only way to end discrimination,” Wolfson said. “It’s better to engage the people of the state in understanding. Minnesota is a state where people are inclined to be fair.” Minnesota Public Radio News can be heard in the Twin Cities on 91.1 FM or online at