On Tuesday, Minnesota voters will decide the fate of a proposed state constitutional amendment banning same-sex marriage. Since the Minnesota Defense of Marriage Act already bans same-sex marriage, some may wonder what will change if the amendment passes. As it turns out, the marriage amendment would have several significant legal consequences. These include:
- Curbing the legislative process: The Minnesota Defense of Marriage Act was passed by the legislature and could be repealed by the legislature, subject to a gubernatorial veto, at any time. The proposed amendment would prevent the legislature from recognizing same-sex marriage. Should they wish to do so, they would need to send another proposed amendment back to the voters. And in that second election, proponents of same-sex marriage would be at a disadvantage, because in Minnesota, anyone who shows up at the polls on election day but chooses not to vote on a constitutional question essentially counts as a “no” vote.
- Curbing the courts: If the proposed amendment passes, the courts will be prevented from finding that the current ban on same-sex marriage violates the state constitution. This type of court decision is how same-sex marriage was originally introduced in several states, including neighboring Iowa, and supporters of the amendment have explicitly stated that one of their goals is to prevent something like this from happening in Minnesota. Of course, the only way they can accomplish this goal is by writing discrimination directly into the constitution.
- Preventing recognition of out-of-state marriages: Earlier this year, a district court in Hennepin County found that the Minnesota Defense of Marriage Act did not prevent it from recognizing an out-of-state same-sex marriage for the limited purpose of identifying the heirs of a person who died without a will. If the amendment passes, courts considering similar questions in the future may be forced to rule differently.
While many are treating this election as a battle in a larger culture war, it is also a legal act with significant legal consequences affecting the lives of real people. Voters should carefully consider whether language declaring that one group of people will be treated differently from others really belongs in the state constitution.