Tuesday, March 28, 2006

A way out of the same-sex marriage debate

Posted by Craig Westover | 2:05 PM |  

Among a plethora of Republican-sponsored bills intending to amend the state constitution comes the following proposal (SF1958) by chairman of the Senate Judiciary Committee Don Betzold.

1.1 A bill for an act
1.2 proposing an amendment to the Minnesota Constitution
1.3 by adding a section to article VI; restricting the
1.4 judicial power to define marriage.
1.7 An amendment to the Minnesota Constitution is proposed to
1.8 the people. If the amendment is adopted, a section shall be
1.9 added to article VI, to read:
1.10 Sec. 14. The judicial power of this state does not include
1.11 the power to define the gender of parties who may enter into a
1.12 civil contract of marriage. The gender of parties who may enter
1.13 into a civil contract of marriage must be defined by law as
1.14 enacted by the legislature.
1.15 Sec. 2. [QUESTION.]
1.16 The proposed amendment shall be submitted to the people at
1.17 the 2008 general election. The question submitted shall be:
1.18 "Shall the Minnesota Constitution be amended to provide
1.19 that the gender of parties who may enter into a civil contract
1.20 of marriage must be defined by law and that the judicial power
1.21 of this state does not include the power to define the gender of
1.22 parties who may enter into a civil contract of marriage except
1.23 as provided by law enacted by the legislature?
1.24 Yes .......
1.25 No ........"

Although I don’t believe an amendment is necessary to protect Minnesota’s marriage law, if there must be an amendment, this is the tack I think should be taken -- but this is not the bill.

Betzold doesn’t have the credibility to carry such a bill, and the language of this bill supports that. Any amendment that addresses separation of powers and does not include a definition of marriage still must address the concerns of those that want such an amendment -- that it protect the current Minnesota law and protects the authority of the legislature to define marriage and by implication, civil unions. This bill doesn't get there.

If I were writing an amendment it would read --
The legislature of this state shall have the sole authority to define the legal requirements of a civil contract of marriage and the sole authority to define, by legislation, all other marriage-like relationships to be formally recognized by the state, as regards number and sex of the parties involved. Such definition shall not be subject to review by the judiciary of this state.

This provision does not prohibit any two or more individuals of any sex from engaging in independent contractual arrangements to achieve a marriage-like relationship. The recognition by the state of such a relationship extends only to the validity of the legal contacts in force, and no other rights or obligations of the state to the parties can be assumed.
I’m not a lawyer, and I’m sure the language can be tweaked, but this amendment allows the legislature to define marriage and determine what "marriage-like" individual relationships will be recognized by the state, without interference by the judiciary. If cases arise, for example, the issue of whether the University of Minnesota can provide domestic partner benefits, the issue can be debated in the legislature and laws passed on a case by case basis based on the will of the people.

The amendment does not go so far as to deny a same-sex couple, for example, from on their own contracting for all the rights and obligations of a married couple. However, the amendment recognizes that only the contractual agreements are recognized by the state. The state is under no obligation to recognize any non-defined aspects of the relationship.

While I do not agree with the sentiment behind the amendment I’ve outlined, I think that if the real concern of opponents of same-sex marriage is “judicial activism,” this amendment mitigates that concern. If the real concern of those sympathetic to same-sex marriage is keeping a ban out of the constitution, this amendment mitigates that concern and leaves the issue open for debate in the legislature. Both sides should be able to agree that the issue remains in the hands of the people through their elected legislators.

What is needed is a corageous, conservative Republican to carry the legislation.