Couples file appeal in Minnesota same-sex marriage lawsuit
Friday, August 19, 2011 at 12:01 pm
- 13 Comments
The 2012 ballot isn’t the only place where a raging debate on same-sex marriage is taking place in Minnesota. Three same-sex couples filed an appeal in July in their bid to overturn Minnesota’s Defense of Marriage Act, and groups on both sides of the issue have filed paperwork with the court offering strongly worded arguments on the issue of marriage equality.
A Hennepin County district court judge dismissed a suit by the couples — Duane Gajewski and Doug Benson, Lindzi Campbell and Jesse Dykhuis, John Rittman and Tom Trisko– in March. The judge said that until the Minnesota Supreme Court overturns Baker v. Nelson, a 1971 case that said same-sex couples cannot marry in Minnesota, “same-sex marriage will not exist in this state.”
So the couples are taking their case to the Minnesota Court of Appeals with hopes that they can get it heard before the Minnesota Supreme Court.
“The appellants challenge MN DOMA and the obstacle it poses to the appellants’ enjoyment of 515 separate laws that confer tangible benefits upon married couples and their families, and relieve the injuries the appellants face in taxation, inheritance, powers of attomey, health care, and child rearing, amongst other matters,” the court filings for the couples read.
Attorneys for the couples argue that the 1971 Baker decision doesn’t apply, arguing that the current case is about recognizing marriages performed in other states.
“Resting on its interpretation of the Book of Genesis for its holding, the Baker Court turns aside an early bid by a same-sex couple seeking to marry under Minnesota law,” court filings said. “Notwithstanding the state’s protests to the contrary, and notwithstanding the district court’s reluctance to rule contrary to Baker in spite of its stated misgivings, Baker does not determine the outcome of this case. In addressing the claims of same-sex couples lawfully married in other jurisdictions, this court may grant the appellants relief from MN DOMA, regardless of Baker.”
In a bit of a twist, the Minnesota Family Council filed a brief saying that Baker is a “decisive” case. That differs from MFC’s public statements that judges are likely to rule in favor of same-sex marriage and that a constitutional amendment barring it is necessary.
“[T[he Minnesota Supreme Court’s Baker decision is undoubtedly binding and controlling here,” MFC’s attorneys wrote. Those attorneys are from the Alliance Defense Fund, a group founded by prominent religious right groups including James Dobson’s Focus on the Family and the American Family Association, an organization that has been labeled a hate group by the Southern Poverty Law Center.
“The State Supreme Court in Baker squarely rejected the argument ‘that the right to marry without regard to the sex of the parties is a fundamental right of all persons’ under the federal constitution. That same conclusion… applies under the state constitution,” they wrote.
The Family Council brief also argued that lesbians, gays and bisexuals do not constitute a “suspect class” because they do not lack political powerlessness — “such individuals wield tremendous power” — and it contends that sexual orientation can change.
Finally, the group argues that same-sex couples should not be granted marriage rights because they cannot reproduce.
“Sexual relationships between opposite-sex couples have a normative procreative capacity, only those relationships provide children with their mother and father. Same-sex couples, in contrast, can neither procreate without intervention by a person of the opposite sex nor give children a home with both a mother and a father,” the brief said.
The Minnesota Atheists also filed a brief in the case, arguing that laws barring rights for same-sex couples are inherently religious in nature and should be overturned.
“These clerics and their followers are, of course, entitled to their beliefs. But, they should not be allowed to impose their theocratic views in the secular laws of this state,” the brief reads. “There is no compelling secular reason to deny civil marriage to same-sex couples; there are only religious justifications.”
The Minnesota Atheists point to hearings in May on a proposed constitutional amendment that would bar same-sex marriage where every testifier had a strong religious background and testified based on religious belief.
“This religious viewpoint, running deeply through DOMA, clashes with secular science and medicine. For example, the American Psychiatric Association “supports the legal recognition of same-sex unions and their associated legal rights, benefits, and susceptibilities, and opposes restrictions on those rights, benefits and responsibilities,” the brief said.
The group also took issue with the Minnesota Family Council’s assertion that marriage should remain between opposite-sex couples because same-sex couples cannot reproduce.
“This argument makes no sense. The state does not impose any fertility requirements on couples getting married, imposes no test whether the parties can conceive, and does not disallow marriages for women who are beyond child bearing age or men who are impotent, sterile, or have had a vasectomy.”
The timeline for the case is up to the court and could well bleed into the debate over the constitutional amendment as it gears up next year leading to the November elections.
Doug Benson, one of plaintiffs in the case, said, “Even if our opponents’ anti-gay marriage amendment is defeated by the voters in November 2012, our law suit will still be needed to get rid of the current Minnesota DOMA statute from 1997. We will continue to carefully move our case forward in the courts, using every argument and resource at our disposal to overturn the statutory ban on same-sex marriage.”
But the lawyers for the Minnesota Family Council warn that if the case is successful, gay marriage will be forced on everyone.
“No provision of the Minnesota Constitution gives individuals the right to redefine marriage and force that definition on everyone else,” the ADF’s Jim Campbell said in a statement.
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Comment posted August 19, 2011 @ 12:56 pm
@MFC
no one will be forcing you to marry a gay person.
Comment posted August 19, 2011 @ 1:08 pm
This is getting real interesting.
Love this:
“The state does not impose any fertility requirements on couples getting married”
How true, how true. Unless of course the Family Council has their way. Watch out you infertile heteros or those of you who don’t want kids. You’re probably next on their list.
Comment posted August 19, 2011 @ 1:19 pm
@Kevin, of course the extremists want to enforce fertility laws on couples, how else will they be able to indoctrinate the next generation?
Comment posted August 19, 2011 @ 4:54 pm
One of the things I’m excited about is that the anti-gay arguments for Prop 8 were shot down readily in California court. Those same arguments will probably be trotted out here in Minnesota, but they won’t hold up in court here either. It will be interesting to see how things play out. I know this much: sooner or later, marriage equality WILL come to Minnesota. It’s just a matter of time. The right-wing fearmongers are clawing and clinging desperately to their tired old arguments, but the tide is turning and the end is in sight. On the day when marriage equality becomes a reality for all Minnesota citizens, I’m going to love watching the regressives go down in flames.
Pingback posted August 19, 2011 @ 8:50 pm
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Comment posted August 20, 2011 @ 11:19 am
It is not necessary for gays to be part of an identified suspect class to demonstrate that they indeed have political powerlessness as a group and are unconstitutionally discriminated against. The very fact they are explicitly, by law, not allowed to legally marry in most states (including in Minnesota) IS the testament to their political powerlessness.
The long documented histories of discrimination and abuse of gays and lesbians in Minnesota is also testament to their political powerlessness. The fact that politicians like Pawlenty and Bachmann are able to make them political pawns with intent to even take more rights away from them is testament to their political powerlessness.
Hennepin County, where this case originated, in particular has a long history of purposeful discrimination against gays that in itself shows the powerlessness of gays and lesbians at the local level. The Anoka-Hennepin School District is currently being sued by two civil rights groups and a local law firm on behalf of five students for discrimination and bullying in the local school system after a rash of gay teen suicides in the district.
The arguments for the political powerlessness of gays and lesbians as individuals and as a class of people are endless. Many of these arguments are parts of the court records and expert testimony in recent state and federal court cases regarding gay marriages and DADT — most of which were found by the courts n favor of gays and lesbians.
Many states including nearby Iowa, Massachusetts and California have notable cases in which their Supreme Courts ruled in favor of gay marriage without the heightened scrutiny of gays being a suspect class. As well, without invoking heightened scrutiny, two lower federal courts in Massachusetts and California have ruled that to ban gays from the same rights, benefits and responsibilities of marriage as heterosexuals is unconstitutional.
However, if heightened scrutiny is the only standard that the Minnesota Court will honor in order to uphold gay rights under the Constitution, there is plenty of court precedent to argue for heightened scrutiny. Already two other federal courts have applied heightened scrutiny status to gays and lesbians in ruling in favor of their gay clients.
The first was the matter of Maj. Margaret Witt in a DADT related case. The second was a federal Bankruptcy Court that ruled in favor of Gene Douglas Balas and Carlos A. Morales and against DOMA laws that would have prevented them from filing bankruptcy.
The U.S Bankruptcy Court called upon the precedent of the Witt case and concluded in the federal bankruptcy case that “The Debtors have demonstrated that DOMA violates their equal protection rights afforded under the Fifth Amendment of the United States Constitution, either under heightened scrutiny or under rational basis review.” .
This case is particularly important in that besides ruling in favor of the gay couple, it also ruled that Section 3 of federal DOMA laws are unconstitutional. To stress how strongly the Bankruptcy Court felt on this ruling, the opinion was signed by 20 bankruptcy judges, an overwhelming majority on the court.
As well, the White House and the Department of Justice have declared gays are indeed part of a suspect class that requires higher scrutiny by the courts in matters of federal DOMA (Defense of Marriage Act) as well as issues like DADT.
As regards procreation. That is an argument that is dead in the water. The Supreme Court has already ruled on the matter.
Gays can procreate as well as heterosexuals. Biologically they are just as capable. Apart from an ability to procreate naturally, there are all sorts of other capabilities given them to create and raise their own families. The gamut goes from adoption to artificial insemination.
At present between 18 and 25% of gay and lesbian households and families (depending on the state) already have children many of them procreated by one of the parents in the household. That is not unlike many heterosexual households and families where one of the original birth parents are no longer a part of their birth-children’s lives.
Still, according to the Supreme Court of the United States, procreative ability is NOT a prerequisite for marriage. In more than 14 cases the Supreme Court said marriage is one of the most basic and fundamental rights of citizens. In one of those cases, in 1978 the Court held unconstitutional a Wisconsin law preventing child-support scofflaws from remarrying.
In another case in 1987 (Turner v. Safly) the Court struck down as unconstitutional a Missouri law that prevented felons from marrying. Missouri reasoned imprisoned felons are unable to have physical contact with spouses. As such they could not further the purposes of marriage for procreation. Each of the 14 cases was rejected by the Court.
In the specific case of Wisconsin it said that “decisions of this Court confirm that the right to marry is of fundamental importance for ALL individuals” (emphasis mine). To Missouri it said that even for imprisoned felons, marriages were constitutionally protected “expressions of emotional support and public commitment.” and rejected that an ability to procreate was a necessary purpose of marriage.
Today, according to the U.S. Supreme Court, the choice to marry or the legality of marriage cannot be restricted by issues related to one’s ability or not to procreate. It currently is not the practice in heterosexual marriages and in Missouri, the Supreme Court specifically overruled the law that made procreative ability a requirement of marriage.
In summary, the two basic arguments that have been stated as key to Minnesota denying gays the right to marry the person of their choosing are already weakened or invalidated by prior court precedent.
Comment posted August 20, 2011 @ 11:25 am
I’m encouraged to see how religious arguments against same-sex couples who are in long-term, committed, loving relationships–married in all but name–are being challenged. I also very much appreciate learning about the perspective of atheists in Minnesota and their work to affirm protections for GLBTQ Minnesotans.
I’m encouraged, too, that there is now a growing, more visible interfaith movement in the state that *supports* the freedom to marry for all loving couples and is working with MN United for All Families in order to defeat the proposed constitutional amendment that would define [restrict] marriage as only between a man and a woman.
Even as we push on for the freedom to marry, I carry the concern of how to retain a *cohesive* Minnesota before, during, and after the vote in November 2012. We still have to be neighbors, after all. And yes, Ron, I agree: Equality is coming.
Comment posted August 20, 2011 @ 11:37 am
As far as the Family Council’s arguments that being gay is a choice and that sexual orientation can change, all the court needs to do is look at the medical and scientific research and findings on the matter. To date there are NO current peer-reviewed scientific or medical studies that indicate one can change from being gay to being straight — NONE. For most people it is not a choice to be gay.
However, there are plenty of peer-reviewed scientific and medical studies that identify statistically verifiable physiological and biological differences in gays and lesbians that mostly occur in the womb that are different than how they occur in straights.
Look at Levay’s studies on the hypothalamus and studies by Allen and Gorski (1992) who concluded a section of the fibers connecting right and left hemispheres of the brain is 1/3 larger in homosexual men than in heterosexual men. Now compare that to studies of the makeup of the brains of gay men or lesbian women and their heterosexual counterparts as analyzed by Savic and Lindström and reported in the Proceedings of the Nat’l Academy of Sciences, 2008.
The PET and MRI in these studies show differences in cerebral asymmetry and functional connectivity between homo- and heterosexual subjects. The significance of the difference in these brain regions between gays and straights is that these regions of the brain are fully formed at birth and impervious to later environmental effects, both physical and psychological (nature vs. nurture). These brain studies indicate sexual orientation is likely determined before birth.
Look at two studies of identical twin brothers vs. fraternal twins of gay men to see how many of them are gay ((Bailey & Pillard, 1991 and 1995). These indicate a strong gay in-vitro biological factor at the time of the birth. A separate study in 1993 of fraternal and identical twin females found similar results.
Look at studies of physical differences in gays that appear in statistically significant numbers than they do in straights. These include the propensity of gays and lesbians to be left-handed. It includes the direction of the swirl of the hair in the back of the head of gay men. It includes studies that found gays and lesbians tend to have shorter index fingers compared to their ring fingers than do heterosexuals — significant because the relative size of fingers is determined in the womb before birth.
Look at studies by Hall and Kimura at the U. of Western Ontario who analyzed the number of ridges on the index finger and thumb of the left hand and compared it to the ridges on the right hand. 30% of gays had a surplus of ridges on their left hand compared to 14% of heterosexuals. Note that fingerprints are fully formed before the 17th week of pregnancy and do not change after birth. .
How about studies in the birth order of gay brothers with multiple siblings that was conducted at Northwestern University. – Evanston? Earlier in looking for a gay gene, Dean Hamer at the Nat’l Cancer Inst. (1993) identified an unusually high propensity in the % of homosexual siblings and noted gay men are more likely to have older brothers than older sisters. In 1997 Blanchard and Klassen reported that each older brother increases the odds of a man being gay by 33%. This is one of the most reputable epidemiological variables identified in studying sexual orientation and is a strong predictor of sexual orientation in gay males. Based on Sanders’ research on 1000 gay brothers at Northwestern in 2008 it likely has something to do with changes induced in the mother’s body when gestating that affects subsequent sons. NOTE: this happens in the womb before birth.
Factors that make up gay people are more complex than just a gay gene. They include environmental factors. But, what these studies identify are statistically verifiable physiological and biological differences in gays and lesbians that mostly occur in the womb that are different than how they occur in straights. Maybe you can discount one or two of them, but you cannot discount them all.
All are peer-reviewed studies and published in respected scientific journals. Conversely there is absolutely no scientific peer-reviewed studies done and published in respected scientific journals that indicate being gay is a choice and can be changed through programs like ex-gay ministries or reparative therapy. NONE.
Comment posted August 21, 2011 @ 7:36 am
As a Transexual/Intersex person and a registered voter I urge you to consider another perspective in the debate over Same Sex Marriage. If Marriage is to remain being defined as a legal union between a man and a woman it would then require legislation on the legal definition of a man and woman.
As someone that has been affected by and studied sex/gender issues, it became evident that not all women are chromosomally xx nor all men xy. There are also xo, xxy, xyy and mosaic chromosomal karyotypes. Kleinfelters, Turners and Androgen Insensitivity Syndromes as well as Congenital Adrenal Hyperplasia and 5-Alpha–reductase deficiency are but a few naturally occurring phenomena that result in female bodied males and male bodied females. Toxicologists are also recognizing the fact that prenatal exposure to certain environmental chemicals with hormonal properties as well as many commonly used medications for male pattern baldness, prostate and heart diseases can result in incongruent sex/genital development as well as ambiguent genitalia, intersex conditions (hermaphroditism) and transsexuality. For over 40 years now many babies born with ambiguous genitals are surgically corrected (?) to female during infancy no matter what their sex karyotype.
Scientists agree that 1.73% of all babies born in the United States have some degree of intersex condition. The number of subclinical cases could at minimum double that percentage. Many of those conditions are not realized until patients present to their doctors in puberty or later with fertility issues. The medical community is reluctant to tell patients due to the potential of destroying that persons relationships and resulting in depression, anxiety and possible suicide. Instead they pursue fertility treatments, invitro fertilization, egg and sperm donors, or surrogate motherhood. If marriages were to be challenged in a court of law and DNA used as evidence many now legal marriages would need to be annulled.
Everyone is born with the innate ability to recognize their own gender no matter what genetic, medical or environmental factors they have been exposed to. None of these conditions are a choice for those affected. To exclude these people from protections granted all other citizens is in direct opposition to everything this country stands for. All citizens are entitled to the pursuit of the “American Dream”. .
The original concept of the marriage license was to prevent very closely related individuals from marrying, minimize the potential of spreading STDs , to ensure that the union was voluntary and as societies blessing to those who choose to commit their lives to each other. The real threat to our society is the rate at which babies are being born outside of a committed, loving relationship. There are many same sex couples that are totally capable of raising happy, healthy, well adjusted children that will ultimately become productive members of our society.
Marriage licenses are given to convicted murderers, child molesters and rapists. Are they more worthy of having their relationships honored while denying the commitment and responsible actions of same sex couples? If marriage is about procreation, why are marriage licenses granted to infertile couples or those having no intentions of having children?
Let us not forget the dream of the Pilgrims – those that originally risked all to travel to and settle this country. They left their native lands due to religious rule and intolerance. They had a vision of freedom for each individual to express their religious beliefs and worship their GOD without interfering in or being interfered by the beliefs of others – Freedom OF and Freedom FROM religion.
Let us not forget the basic principles shared by all religions. PEACE, LOVE, GRACE and RESPECT for all that share this planet we call home.
Marriage has its roots in religion and, I believe, it is up to each individual church to decide who they will and will not marry. It is NOT the governments business to legislate religious policy. It IS the right of every human being to have their love and commitment recognized by civil law as equal in all respect to that of a religious marriage.
Comment posted August 22, 2011 @ 10:49 am
There a lot of great, insightful comments to read. The article was insightful also. HUGE thanks to Andy B.
I still believe that through evolution, there are a variety of species on this planet that have a percentage of homosexual behaviors genetically built in perhaps for over-population purposes. It’s been documented and obvious that nature has a hand, genetically, in creating this behavior. Are these not the species that the universe (God) and nature have created? I believe we as humans have that genetically built in but then spiritually, as souls, we are genderless. Try asking people who are against gay-marriage, if before they were incarnated into a human form, did their soul have genitals? After they discriminate, will their soul have genitals? Are we not souls having a human experience? Doesn’t their religion mention this truth of an immortal soul? It helps to remind humans that earth is not our true home and being a human isn’t our true existence.
The reality with Christianity is that it’s a dead religion just as Latin is a dead language. It’s fine to learn it and know about it but it’s not fully used in modern day society. The dead Christian religion is full of primitive and outdated rules with overly exaggerated stories. The Christians are delusional and they pray to a dead master without giving it’s living followers the blueprint and architecture of their soul. As time goes on, those who follow this dead religion will find it more and more difficult to be apart of a modern day society. Can you imagine trying to talk to someone in Latin who doesn’t understand the language. You won’t get far in life. It will be frustrating and ineffective to communicate. The struggles are obvious and evident. It’s not OK for people to cherry pick the Bible rules and then impose those rules onto others… and so on and on with the dysfunctional conflicts that many of them create, when in reality, they themselves cannot live by all of their religious Bible rules. Hypocrites.
I’m delighted to read that Atheists have stepped up to share some logical views. Atheism will be the strength of the gay community for it helps dissolve and discredits the dead Christian delusions. Atheism sheds the basic light of truth on the mind-controls with brainwashing and over exaggerated stories that religious have been indoctrinated to believe. In some ways, Atheism will be the modern day Anti-Christ. I only hope that the brainwashed can take the leap into reality and reason, then find the architecture of their soul and progress to learn and understand their human/spiritual process more deeply.
An evolved person who sees beyond their self-serving existence will understand that two consenting souls who love and care for each other, peacefully, is a beautiful thing… regardless of what biological suit they wear and the equipment between their human legs. I’ve found it helpful to point out the illusion of our flesh that is used and meant for so many other things than just to make genetic copies of itself.
Peace, Love and Light to us all.
Comment posted August 22, 2011 @ 12:43 pm
Donna
“If Marriage is to remain being defined as a legal union between a man and a woman it would then require legislation on the legal definition of a man and woman.”
Thank you. I never thought of that.
With that said, part of me (the really weird, lover of the bizarre) would almost like to see how the conservatives handled this – how they would trip over themselves – trying to come up with a definition of a “real man” and a “real woman”. OMG that would be a hoot!
Something tells me at least part of the definition of a “real woman” would include: She wears dresses and skirts, pearls while doing housework, has dinner ready at 6pm every work day and never says “no” to her husbands needs.
Comment posted August 22, 2011 @ 1:50 pm
Great comments! Let’s hope the MN Supreme Court takes its example from the dignity, ethics, and intrepid adherence to the wording and intent of their Constitution, the way Iowa’s did….and ignore as unworthy and insignificant the threat of politicized repercussions. The Iowa Supreme Court did what they knew to be justice in defense of a disenfranchised minority, and they did not back down in the face of threats of unpopularity, or flinch when the extremist fringe went after them in petty retribution for defending equal rights.
Equality is not about popular opinion, it’s ONLY ABOUT EQUALITY. It isn’t subject to pressure or the whims of the masses; it is the heart and soul of our constitution, our state, and our nation. It will come; it can be delayed, but not averted.
I recommend reading the excellent decision by the ISC: http://data.lambdalegal.org/in-court/downloads/varnum_ia_20090403_decision-ia-supreme-court.pdf
It answers many of the same arguments being put forth in the current case.
Comment posted August 22, 2011 @ 11:38 pm
Thank you Donna P. Perhaps the question on the ballot should be to have the married heterosexuals tested to see if they are in fact xx or xy. Under current law, they are no longer eligible to be married under our system of apartheid. That MAY include a legislator or two.
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