A Non-political look at the “Marriage Amendment”

Written 10-22-2012

In a couple of weeks the question of whether to amend the Minnesota Constitution to include a definition of “marriage” will be placed before the general voting population of Minnesota.  As an attorney who has both focused on constitutional law and worked in the family law area for the last 20 years, it pains me to see this issue being framed by a polarizing “narrative” which focuses on people’s personal feelings, or on the wording of the referendum itself, rather than on its legal and practical impact on our society. Both sides seem bent on popularizing their biases through campaign ads and sound bites, while the voters are left to their own devices to search for relevant background on the question. Not one person I have heard comment on this referendum – not ONE – has said anything about what I would consider the most important information needed to make a good decision about how to vote on this question, that is:

What is the State’s purpose for defining marriage in the first place?

Without an understanding of this, the question becomes purely personal – putting the focus on how people “feel” about gay marriage. The result is likely to be a tragic lose/lose situation: The amendment passes and gay people get the message that the people in Minnesota consider them undeserving of respect and value; OR, It doesn’t pass, and the courts read it as a green light to override the state’s current definition of marriage, unraveling the legitimate purpose for its historical definition.

So what was the State’s purpose?  For starters, it was NOT to make heterosexuals feel better, or to draft a particular religion’s definition of “marriage” into law – That would have been illegal in the first place. So what was the purpose? Let’s look at the background.

The “First Article” of the Minnesota Constitution reads as follows:

“ARTICLE I

BILL OF RIGHTS

Section 1. Object of government. Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.”

Notice that the right to “alter, modify or reform” government must be for the “public good”. So what was the “public good” served by the legislature defining marriage in what now appears as Minnesota Statutes §517.01?

“MARRIAGE A CIVIL CONTRACT.    Marriage, so far as its validity in law is concerned, is a civil contract between a man and a woman, to which the consent of the parties, capable in law of contracting, is essential. Lawful marriage may be contracted only between persons of the opposite sex and only when a license has been obtained as provided by law and when the marriage is contracted in the presence of two witnesses and solemnized by one authorized, or whom one or both of the parties in good faith believe to be authorized, so to do. Marriages subsequent to April 26, 1941, not so contracted shall be null and void.”

A reading of the more than 100 years of history around this statute shows that the State had an apparent interest in the “civil contract” of marriage between a man and woman as the foundation of the traditional family, which was the “building block” of society. As recently as 1973, the legislature expressed its value of the “nuclear” or traditional family in the Minnesota Corporate Farm Act (MN Stat. 500.24), which states as its purpose as,

“to encourage and protect the family farm as a basic economic unit, to insure it as the most socially desirable mode of agricultural production, and to enhance and promote the stability and well-being of rural society in Minnesota and the nuclear family.”

The point here is that the State had a very pragmatic reason for defining marriage the way it did: The strength of its “building block” – the family.

Aside from the historical basis for the state’s interest in defining marriage, another essential fact to note is that the language in the current marriage statute that reads, “…only between persons of the opposite sex…” was added by amendment in 1997 – four years after the Minnesota Human Rights Act was amended to make “sexual preference” a protected class along with race and gender in the State of Minnesota. So the legislature’s new language in 517.01 was no doubt a response to the Human Rights amendment of 1993, which, while passed to insure respectful treatment of gays and lesbians, could also be used to unravel the State’s promotion of the nuclear family by allowing the new protected class to demand that the State abandon its definition of marriage. Likewise, the current referendum to amend the Constitution has been prompted by recent court challenges to the State’s existing marriage statute.

Getting back to “the public good”, some might argue that “times have changed” and the nuclear family is a thing of the past. The problem with that position is this: Statistically, those intact nuclear families in the State of Minnesota continue to prove that their members have a measurable and predictable advantage in the quest to become productive, healthy citizens who give more than they take. Findings from the New Family Structures Study*is loaded with objective comparative data on income, employment, education, personal health and safety, mental illness, civil, and criminal behavior, which support their summary statement in the final paragraph of the report which reads:

“But the NFSS also clearly reveals that children appear most apt to succeed well as adults—on multiple counts and across a variety of domains—when they spend their entire childhood with their married mother and father, and especially when the parents remain married to the present day.”

So with this background, we also need to understand that if majority of us who vote in this election either cast a “No” vote, or check nothing at all on this question, the amendment fails, and we will have left it to the courts to decide if the existing marriage statute violates the Human Rights Act.  In answering this, the courts’ question will not be whether the Statute promotes the “public good”, but whether or not it complies with the legal implications of the Human Rights Act language.

On the other hand, if a majority of voters check “Yes”, then the Constitutional Amendment will stand on par with the Human Rights Provision as a statement about the public benefit of traditional marriage. While it is still likely to be challenged for consistency, a Constitutional provision will demand equal footing with the Human Rights Act provisions on the question.

It is my hope that this information will help empower voters with the information needed to make an informed decision on this question. In my opinion the last thing we need is another issue that divides or devalues Minnesotans in the name of conservative or liberal agendas. I hope that we can keep our eye on the ball – that is, what the basic language of the Constitution states is important: the “public good”.

R.C. Roby

* “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study”, Social Science Research Volume 41, Issue 4, July 2012, Pages 752–770