Now what? Legalizing same-sex marriage in Minnesota

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The Marriage amendment was defeated and Democrats took control of both houses of the Minnesota legislature and also control all the executive branch constitutional offices. Advocates of same-sex marriage say the time is now and that the DFL should not simply repeal the Minnesota Defense of Marriage Act (DOMA) but move directly to legalize same-sex marriage. Should that be at the top of DFL agenda come January? Reasons bode in favor and against this choice.

The cause is worthy. This is a major civil rights issue not a political question. As Vice President Dick Cheney said: “Freedom means freedom for everyone.” It is wrong and impossible to say to one group: “Wait, Wait, the time is not right.” But the fact is, the next move on same-sex marriage in Minnesota may be more complex.

Strike while the iron is hot and the momentum strong, according to GLBT activists. Momentum is important. It might also be that the time to act is now, that this is an issue that is the right thing to do even if it means losing the majority in the House in two years. Lyndon Johnson signed the 1964 Civil Rights bill fully cognizant, as he said, that it would cost the Democrats the South. He signed it and it did. Maybe the DFL should demonstrate the same courage. That is a reasonable position to take and maybe worth it.

But voter rejection of the Marriage Amendment does not necessarily mean majority support for same-sex marriage. Lots of people voted against the amendment for lots of reasons and not all for the reason that they supported the rights of same-sex couples to marry. Some thought the amendment route was wrong or that it was not needed because of DOMA and a court decision in Minnesota making it illegal for same-sex couples to marry. Yes it is the case that the right to marry should not be contingent upon majority assent. But it is not clear the public supports this next step yet. It is also not clear the DFL have the votes to secure legalization. It is also the case that election of a DFL majority in the legislature was more of a rejection of the Republicans than support for the Democrats. Cautious minds might bode against this strategy for fear of backlash or overreach.

But even if the votes are not there now, begin the battle. Introduce the legislation and work on public opinion. So many times the rule at the capitol is that laws do not pass the first year. Again a reasonable strategy.

So what should the DFL do? There are four options.

Option one is seek GOP support for legalization and only pursue with their support. The GOP nationally and in MN are in bad shape, out of touch demographically and way behind the times in support from young people because of gay rights and same-sex marriage. Follow the path of New York State and move for bipartisan support. Let Republicans join in sponsoring the bill.

Option two is to legalize same-sex marriage in all but name. Pass domestic partner legislation regardless of sexual orientation or marital status. This is not marriage rights but it grants benefits to couples even if they choose not to marry. This approach might be more acceptable to many Republicans, but not necessarily to marriage equality advocates. This is a half-way step that perhaps builds momentum for full marriage equality. Conversely, for some this is government getting o ut of the marriage game altogether and maybe that is a viable route.

Option three is wait for the US Supreme Court. It will been soon–perhaps sooner than many think–that it will strike down bans on same-sex marriage under the US Constitution. I have argued for two years that Justice Kennedy will do that in a 5-4 vote before he leaves the Court. Or maybe he or another conservative justice will retire under Obama’s presidency and provide the fifth vote for this.

Option four is do nothing. This sounds cautious but Obama paid a price with young people in not moving vigorously on gay rights. If the DFL does nothing it too risks backlash within its own party and among supporters.

All four options carry risks and the DFL cannot avoid making a choice.