As many as 10 same-sex couples plan to file a lawsuit soon against the state of Minnesota for the right to marry. It’s a controversial move, one that some in the gay and lesbian community think is ill-timed, but those couples who are putting their money on the line — and their lives under a microscope — say the time is always right to fight for equality.
I sat down with Doug Benson, founder of Marry Me Minnesota, a nonprofit group that formed last year and is helping organize the lawsuit. Benson and his partner are also part of the planned suit.
Birkey: Why did you decide to sue the state of Minnesota?
Benson: My civil rights are being violated by the state of Minnesota. The injustice of our state government denying thousands of same-gender families across this state their constitutional right to the security, advantages and responsibilities associated with legal marriage cries out for a court challenge. The state has no compelling or even rational interest in denying this right, dividing Minnesotans into those with rights and those without. We should all have the same rights. The courts can put an end to the injustice in short order, and as citizens it is our right and our responsibility to petition the courts to do that.
Duane and I first tried to get legally married in our hometown of Duluth 16 years ago. We continue to see the need to challenge the state’s discriminatory marriage laws. Last year we had a discussion with two other couples we are friends with who had expressed a strong desire to sue the state for marriage rights. We believed that a group of litigants consisting of three couples, one with children, would present a strong case and we decided to seek counsel.
Birkey: How will the lawsuit work?
Benson: This is how I understand it: The case will be filed in District Court [in the coming months]. There will be a trial and a judgment. That judgment will most likely be appealed by either side. It will be heard by the Appeals Court, and a judgment will be rendered. That judgment will most likely be appealed by either side to the [Minnesota] Supreme Court. The Supreme Court may or may not hear the case, but if they do, the Supreme Court justices are not there to enforce their ideology or prejudices. They are charged with upholding the principles of the Constitution. If they do that, regardless of who appointed them, we will win.
One aspect of Marry Me Minnesota’s lawsuit against the state will be to challenge the state’s DOMA [Defense of Marriage Act] law, which was passed in 1997. This law, among other things, prohibits the state from recognizing same-gender marriages obtained in other jurisdictions. Overturning this law would make it possible to have our out-of-state marriages recognized as legal here in Minnesota.
And, the DOMA law has a problem. It was passed by the Legislature in the same manner that the state’s recent “concealed carry” gun law was passed. That law was overturned by the Minnesota Supreme Court because of the manner in which the bill was passed [by being attached as a rider instead of a stand-alone bill].
Our law firm, Mansfield, Tanick and Cohen, is the law firm that brought that case against the concealed-carry gun law and won. They will take their experience and expertise in winning that lawsuit and apply it to our case against the state’s DOMA law.
We meet with the law firm this week to chart the course.
Birkey: Is a legal challenge necessary? Could marriage equality be sought through the Legislature?
Benson: It needs to be done in both places so the two avenues of redress work synergistically. It worked in California and it can work here. Unfortunately for California, they also have initiative and referendum. We don’t.
Birkey: How did you personally feel about the passing of Prop 8, the voter initiative in California that took away marriage rights for gays and lesbians?
Benson: Disgusted and actually the same thing I have felt for any of these anti-gay referenda … dismay that the rights of a minority have been put to a popular vote in the first place. The courts really need to step in and stop that practice. Allowing voters to decide on whether or not their neighbors will have the same rights as they do is just crazy.
Birkey: What types of couples have expressed interest?
Benson: We have couples both male and female, younger and older, with and without children, legally married in other jurisdictions and not. One couple just celebrated their 35th year together!
Birkey: Have you encountered any resistance from members of the LGBT community, or are community members nervous about your strategy?
Benson: Sixteen years ago the establishment activists in the metro [area] were saying it isn’t the right time to fight for our rights in court. They’re still saying the same thing. There hasn’t been an identifiable advance in gay rights in this state during that period. That fact, plus wide spread discontent over the lack of progress, bolsters our resolve to move forward with the suit, with or without the blessing of establishment organizations.
As citizens, we have to fight even though we may not be assured of victory. We have to believe we can win. If everyone waited for an absolute guarantee of success before they tried to change things, nothing would ever happen. The truth is, we don’t know what the outcome of this suit will be, and neither does anyone else, no matter how much they may profess to be able to predict the future. We could win it all or have a partial victory or be turned away. Whatever happens, it will advance the cause of marriage equality in Minnesota by showing our opponents and supporters alike that we’re willing to fight for our rights and our families with all means available.
Birkey: How would you respond to religious right folks who criticize using the courts to seek equality?
Benson: The courts exist to protect the rights of individuals. The instant the religionists perceive any bias directed at them, they’re in court.
Birkey: Do you think you will see marriage equality in your lifetime?
Benson: Yes … and soon, in the courts or the Legislature. It’s coming.