Friday, June 4, 2010

Minnesota Lawsuit seeking to overturn ban on gay marriage risky

In the state of Minnesota,  a lawsuit seeking to overturn the state's ban on same sex marriage is facing   tough odds in court.
 It also lacks the broad public support that propelled which helped 5 other states successfully end their ban.  
Gay activists across the nation are worried that it may propel some sort of backlash in this 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 are very aware of how conservative groups will attempt  to use the gay marriage issue as a wedge,  and to put Democratic incumbents on the hot seat,  winning votes for the opposition.  
Some gay activists believe this battle might set gay advocacy back.  
Already,  a  national group opposed to same-sex marriage has  launched a $200,000 ad campaign targeting gubernatorial candidates who support same-sex marriage. And another conservative group is ready to intervene, and argue on behalf of Minnesota's state constitution. 

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.
States which are "on the fence" are being sought eagerly by both sides,  each wanting to tip things in their own favor. 
Some gay activists are looking at Iowa as a precedent for Minnesota.  But the lawsuit in Minnesota faces different challenges than those overcome in Iowa and elsewhere.
Minnesota Supreme Court Ruling, 1971

Minnesota Supreme Court ruled against same-sex marriage in 1971,  a precedent which no other state which won same sex marriage had,  and a decision which the current Minnesota State Court would have to overturn.  Four of the 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 ofOutFront 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 in addition rules that same sex marriages from other states cannot be recognized in Minnesota.  
DOMA Challenged on Behalf of 3 Couples 
Attorney Peter Nickitas filed suit on behalf of three couples,  challenging  the state's Defense of Marriage Act through the courts.
The lawsuit argues the law violates equal treatment under the law,  and that  Minnesota's Constitution provides for free conscience and equality;  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 does not believe there is any reason for assuming 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."
Gay Group OutFront Minnesota Says Suit Too Risky

OutFront Minnesota issued a statement criticizing the action as ill-conceived and risky.  But one of the plaintiffs pointed out that after  the suit was filed, more than 1,000 people joined Marry Me Minnesota -- the group raising funds for the legal fight -- on Facebook,  although the suit lacks national backing.  
A legal scholar pointed out that Iowa's Supreme Court was more moderate than Minnesota's,  and Iowa has a tradition of upholding human rights.  
Two examples of states where lawsuits were filed over the objections of some in the gay rights community were given by Evan Wolfson,  founder of Freedom To Marry:  New York and Arizona. Both lawsuits failed, and it became more difficult to change the law after that.

"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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