Legal fight to lift Minnesota's gay marriage ban faces tough odds

Gay marriage demonstration in San Francisco
Demonstrators for and against same-sex marriage protest during a rally in front of a federal courthouse in San Francisco, Monday, Jan. 11, 2010.
AP Photo

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.

Rather than changing state law, some state and national gay rights leaders fear the lawsuit will 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 -- which is currently controlled by Democrats. Some political analysts believe 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 know conservative groups will try to use the gay marriage issue -- still divisive in Minnesota and many other states -- 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. And on Thursday, a national conservative organization will announce plans to intervene in the legal case to argue that Minnesota's Constitution doesn't allow for same-sex marriage.

Same-sex marriage: what other states have done
This graphic shows what some other states have done on the issue of same-sex marriage and if that could happen in Minnesota.
MPR Graphic/Steve Mullis

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 in which there's a ban on same-sex marriage but no constitutional amendment defining marriage as exclusively between a man and a woman.

Those middle-of-the-road states are ripe for attempts by groups on both sides of the debate to either make the ban stronger or lift it entirely.

The groups pushing to make same-sex marriage legal can look to five states for examples of how it could be done, but each case is different. Perhaps the best comparison to Minnesota is Iowa, where a lawsuit made its way to the state Supreme Court, where the state's ban was overturned.

But the lawsuit in Minnesota faces different challenges than those overcome in Iowa and elsewhere.

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. The danger is huge and the chance of success is small," said Amy Johnson, executive director of OutFront Minnesota, a gay rights group that opposes the lawsuit and instead has lobbied at the State Capitol to lift the ban by repealing the 1997 Defense of Marriage Act.

The Defense of Marriage Act bans same-sex marriage and prohibits the state from recognizing same-sex marriages performed in other states.

The lawsuit that was filed last month by attorney Peter Nickitas on behalf of three couples challenges the state's Defense of Marriage Act--but through the courts.

The lawsuit argues the law violates Minnesota's Constitution by denying same-sex couples freedom of conscience and equal treatment under the law. It also says the Defense of Marriage Act addressed more than one issue at once, in violation of a constitutional requirement that legislation deal with a single issue.

Nickitas dismissed criticism for the lawsuit, saying there is no reason to assume the Supreme Court will rule against the couples.

"The world has changed quite a bit since 1971," he said. "In 1971, no religious denomination or faith movement honored same-sex marriage. Today, many do so."

One of the plaintiffs in the suit, Doug Benson, said he was disappointed that OutFront Minnesota issued a statement criticizing the action. He said while legislation may have been effective in New Hampshire and Vermont, so far it hasn't worked here. Benson 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."

Benson said he believes the lawsuit has only a few outspoken critics, pointing to the support people have expressed online for the effort. After the suit was filed, more than 1,000 people joined Marry Me Minnesota -- the group raising funds for the legal fight -- 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.

Kende noted that well-known local attorneys got help from national groups to pursue the case -- which isn't the situation in Minnesota. It also helped that the Iowa Supreme Court was considered moderate and that the justices could look to Iowa's history of human rights law, he said.

"There's no question that this court drew on certain traditions it perceived to be the traditions of Iowa," he said.

Evan Wolfson, executive director of the national group Freedom to Marry, sympathized with the couples who filed the Minnesota lawsuit while also explaining why filing a lawsuit in every state may not be the most effective way of giving gay and lesbian couples the right to marry.

"Being right is sometimes not enough when it comes to a case in court. You 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 -- 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.

Wolfson said activists in Minnesota and other states where lawsuits have little chance should instead focus on creating a climate in which elected officials are pressured to change the law.

"Going to court is not the only way to end discrimination," he said. "It's better to engage the people of the state in understanding. Minnesota is a state where people are inclined to be fair."

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