COLUMN -- With amendment or without, families are here to stay

Wednesday, April 12, 2006

Last week the Senate Judiciary Committee killed the Defense of Marriage Amendment on a 5-4 party line vote, but don't fancy that's the end of the same-sex marriage debate. A well-organized, well-funded movement is working toward the day when same-sex couples have the same rights and protections as heterosexual couples, and Minnesota is in its sights, says Charles Darrell, communications director of the Minnesota Family Council.

Whether you find that a frightening prospect or a cause for hope, it is a reality, and sooner or later, reality has a way of catching up with us.

Crouching lawyers. Just south of the border, the Lambda Legal Defense and Education Fund is challenging the Iowa marriage law. "This lawsuit is about fairness and equality," said Camilla Taylor, an attorney with Lambda Legal, according to the Associated Press. "Since marriage is the way the government provides protection, support and respect for families, it is only fair that these couples be able to marry."

The litigation strategy of national organizations like Lambda Legal is having same-sex marriage declared a state constitutional right in as many states as possible.

In the Judiciary Committee hearing, amendment supporters repeatedly raised the specter of inevitable marriage law litigation in Minnesota. Without elevating the definition of marriage to a constitutional authority on a par with due process and equal protection, traditional marriage in Minnesota is at risk, they said.

"If you choose not to let the people vote on an amendment, advocates for same-sex marriage will seek to fill the state's constitutional vacuum with a ruling from your state supreme court mandating marriage for same-sex couples," testified Christopher Stovall, an attorney with the national public interest law firm the Alliance Defense Fund.

"Activist groups have no litigation interest in Minnesota," counters Eileen Scallen, a law professor at William Mitchell College of Law, who lives in a committed relationship with her partner of nine years. "Baker v. Nelson makes Minnesota unique and an unlikely target."

In the 1971 Baker case, the Minnesota Supreme Court held that the state did not act unconstitutionally by prohibiting a same-sex couple from obtaining a marriage license on the basis of their sex. Stovall contends, however, that Baker analyzed only whether Minnesota's law violated federal constitutional provisions and is silent on the state's equal protection and due process requirements — the target of advocacy lawsuits.

Phil Duran, legal and policy analyst for Outfront Minnesota, argues that whether one agrees with the Baker ruling or not, it is the controlling case in Minnesota, and it is a "very high hurdle" to any marriage litigation.

Hidden agendas. Such comments don't surprise Darrell, who believes that organizations like Lambda Legal and the ACLU would be foolish to tip their hand on litigation until after the November elections. It is only the threat of a constitutional amendment, he says, that has kept national advocacy organizations from filing a lawsuit in Minnesota.

The scant attention local media have given to a unified national strategy challenging state marriage laws contributes to the impression of a hidden agenda. Reality: Groups like Outfront Minnesota and Lambda Legal are extremely open about their mission of advancing the civil rights of lesbians, gay men, bisexuals and transgender people, and they are aggressively pursing that mission.

"Lambda Legal's strategy remains steadfast," reads the organization's annual report. "We are on the offensive." From its Web site: "We can't stop until every court and community understands the true meaning of family."

Statements like that often find their way into Minnesota Family Council literature and DVDs. They conjure an appropriately frightening image of a rainbow horde breaching the constitutional wall surrounding traditional marriage. Once again, however, reality contrasts with the image.

Families that won't disappear. Amendment opponents spent little time in the Judiciary Committee hearing discussing litigation and the legal environment. Instead, they used their testimony to put a human face on committed same-sex couples and the problems they and their extended families face by being denied legal recognition for their relationships. Abigail Garner, author of a book about children of gay parents, spoke for all, saying, "My family will not disappear."

Ultimately, it is the personal stories and not the legal nuances that remain vibrant and continue to irritate our thinking about same-sex marriage. The reality is families founded on same-sex relationships aren't going to disappear. It is with those families that society must reconcile. When we do, the lawyers, legislators and justices will finally fall into line.