Minnesota Marriage Amendment - Part 1

Today’s blog entry discusses an issue which is both political and moral, and it specifically deals with a proposed amendment to the Minnesota Constitution. 

The question, as stated on the ballot is this:

Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?

- Yes

- No

If enacted, Article XIII of the Minnesota Constitution would be amended to add the following section:

Section 13.

Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota.

By seeing this amendment on the ballot, and after seeing the advertisements promoting this amendment, and after reading some of the letters to the editor and other opinion pieces which have appeared in the state, one might assume the Law in Minnesota currently allows marriage between people of the same sex.  This assumption is incorrect.  In fact, the Law in Minnesota clearly does not.  Here it is, Statute 517.01, MARRIAGE A CIVIL CONTRACT.  Now, that link is taking you to the current law.  So, just in case the law changes at some point in the future, or just in case you decide not to follow the link, here is what the law says, as we Minnesotans prepare to cast our votes:

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.

OK, then, so are we all clear?  Marriage between two men, or between two women, is currently not legal in the state of Minnesota.

What purpose, then, would the proposed amendment serve?  I believe there are three answers: functional, religious and political.  I’ll discuss the first two, with a note or two describing why I think these “purposes” should lead us to reject this change to the Constitution.

Functionally, what it does is to make it harder for the people of Minnesota to allow marriage to be a civil contract between people of the same sex at some point in the future.  You see, it is possible that the current law (517.01 above) or other laws which grant rights and privileges to married people could be challenged in court on behalf of same-sex couples.  And, if challenged, it is possible the Supreme Court of Minnesota could find that the current law is unconstitutional.  Some people believe that, if the Constitution is changed as described by the amendment, an interpretation of the amended Constitution would certainly declare 517.01 constitutional.  Another possibility is that the elected members of our Minnesota Legislature might, at some point in the future, want to change 517.01.  Adding this amendment would essentially close the door on that change, until such time as this amendment got repealed.

Discussion: First of all, those who are hoping this amendment would protect the state from being forced to recognize the rights of same-sex couples are wrong.  With the amendment in place, the only right which would be closed to those couples is the right to name their relationship – their civil contract – by the word “marriage.”  However, it is completely possible that a Supreme Court could still regard any law which limits the rights of same-sex couples, or any law which does not recognize the equivalence of a same-sex civil contract with a two-sex civil contract, as unconstitutional. 

So, voting for this amendment has the effect of making future Minnesotans have to go through more work to change what today’s Minnesotans decided was best, and the only truly certain thing is that the word “marriage” is defined a certain way, unless or until the amendment is repealed.

So, let’s look at what purpose defining “marriage” in this way serves.

Religiously, a portion of people who follow Christianity believe, based on their reading of their scriptures, that marriage was instituted by the God of their faith and that God intended it as being created only for a man and a woman.  It is possible that other religious groups feel the same way, but what is certain is that of the major vocal proponents of this bill, those who identify their faith most are Christians.  (Interestingly, though most of the Christians who are in support of this amendment would declare Mormons Non-Christian, the Church of Jesus Christ of Latter Day Saints has contributed quite a bit of money to a similar effort in California. I have no data about LDS support of the amendment in Minnesota.)  By adoption this amendment, the definition of “marriage” in the faith of this set of people would be partially codified into the Constitution.

Discussion:  Let’s deal with the subtle – but important – point I just made.  The amendment only partially codifies the definition.  In the Christian faith, marriage is more than just a civil contract.  It is, to some, but not all current interpretations

-          a sacrament – a sacred act

-          a human analog to the relationship between Christ and his church

-          a lifelong commitment of two people to fidelity to one another

-          a lifelong commitment of the two people to the community of believers

-          and so on.  If you are a Christian, I encourage you to study what marriage has been in the past (it was not always as it is in today’s Christian culture) and what it is now, according to the church.

In any case, none of the above parts of the definition are being codified by the amendment.  None.  So, the amendment does not put “God’s Definition” into man’s law.  But let’s suppose it did. 

Can it be any clearer that this is a direct imposition of one religious viewpoint on those who do not share that religious viewpoint? 

A Constitution should not do that!   If the amendment passes, a faith-based statement would be imposed on  people of Minnesota who are not Christian, and on those of us who are Christian, but who disagree.

I’d like to make an analogy.  Analogies are, of course, imperfect, but please allow me some latitude here.

There are laws against Indecent Exposure.  (MN 617.23)  Suppose someone put forward an amendment to the Constitution which stated:

“Lewd exposure includes the uncovered head of a woman.”

Now, clearly, this is not likely to happen.  But imagine that such an amendment was proposed.  Why would it be proposed?  Well, in various religions, depending on how you read the scriptures and interpret them, an uncovered woman’s head is wrong.   In fact, this law could be supported by religious views of Christians, Muslims and Jews.  Not by the religious views of all of the members of those groups, mind you – merely certain subsets of each.  And in each case, the rule against uncovered women’s heads is at least partially due to the effect a woman will have on the sexual attraction of males around her.  Thus, by a very strict and strange (to most of us) interpretation of the word “lewd,” an uncovered woman’s head might be described as “lewd.”

Would it be right for these various religious groups to band together and change the Constitution to enact their definition of “lewd?”  I hope the answer is, obviously, no.

Would it be right for them to put it into Minnesota Law? 

Well, they could try.  That’s the beauty of the Representative Legislative process.  It wouldn’t get enacted, but for a moment, suppose it did.  With the constitution as it exists today, before the silly amendment I suggested above, the Minnesota Supreme Court would declare the law unconstitutional because it imposes religion on the people.

OK – analogy complete.  But I have one more thing to say about this from a religious point of view.

This amendment has absolutely no bearing on what any religious body or institution can, cannot, may or may not permit.  While today a marriage in a church coincides with a marriage in the Law, they are two distinct things.  For historical reasons, the civil contract (“marriage” under the Law) is typically done as part of the events of the wedding ceremony (“marriage” in the church.)  But they are merely co-incident.  If you get “married” in a church and you do not fill out the paperwork for the civil contract, you are not married under the law.  (Unless there is a “common law marriage” in your state, in which case you might have been “married” according to the state even before the ceremony, or you might be “married” several years after the ceremony, depending on the definition of “common law marriage” in your state.)

This is an example of how separate the two definitions of marriage are – marriage according to the Law and marriage according to the Church.  It’s also why the state could not, for example, force a congregation to perform a marriage ceremony for two people who are not allowed to get married according to the marriage definition in that congregation.  There is no legal justification to force a pastor, priest, reverend, rabbi or anyone to "solemnize" (preside over and sign) a marriage civil contract today, and there is no reason to believe such a justification would exist in the future.  And that act only concerns the civil marriage contract.  The state says nothing about the religious service it is typically tied to.

I think I’ll stop there for this post.  My intent here has been to clarify the effects of voting for the amendment, and to try to lay out arguments why it should be defeated.  In doing so, I did not discuss whether I believe those Christians who are opposed to same-sex marriage are in error, or not.  You see, for the purposes of the amendment, that is not germane.  Imposing a religious doctrine via the Constitution is wrong, and I hope that enough Christians, even Christians opposed to same-sex marriage, see that point.