So let's stop playing defense, and propose a competing constitutional amendment that would guarantee civil marriage rights to all couples regardless of gender.
One of the most demoralizing aspects of debates around "Marriage Protection Amendments" is that there's nobody out there articulating the value of marriage equality, just defending a broken status quo. Consider the landscape in Minnesota today. We have a DOMA statute. Unlike many states, the Minnesota Supreme Court has a 1972 precedent upholding the constitutionality of laws limiting marriage to opposite-sex couples. Despite that, author Warren Limmer knows there's a need to act now:
Same-sex marriage already is banned under decades-old Minnesota law upheld by the state Supreme Court, so the amendment, if passed, would have no practical effect on anyone.
But Sen. Warren Limmer, R-Maple Grove, said nothing would be as iron-clad as defining marriage as exclusively between a man and a woman in the Minnesota Constitution. Without it, there's still a risk, he said, of "allowing a number of politicians or, heaven forbid, activist judges to decide what marriage should be.It's pretty hard to get fired up to fight against a constitutional amendment, when a "win" leaves discrimination enshrined in law and upheld as constitutional by the state Supreme Court.
But here's the line that opens the door, should we choose to walk through it:
"Let the people decide."
Indeed, let's make this a real choice, and put both constitutional marriage discrimination and constitutional marriage equality alongside each other on the ballot.
Every plebiscite on the question of marriage equality is framed as a choice between "activist judges" imposing gay marriage on the populace or the populace voting. Until that changes, referenda will always be tools to deny marriage equality. Every year, opinion is shifting away from discrimination toward equality. Imagine the passion, energy, and resources that people would devote to a campaign to make Minnesota the first state that enshrines marriage equality as a state constitutional right. The framing of equality vs. discrimination would be a powerful contrast. "No on both" would still be a tenable position for some voters, and should actually help defeat Limmer's amendment.
Besides, we will not defeat this attempt to enshrine discrimination in the constitution by hemming and hawing about how it's "not necessary because we already have a law (Yay!)," "a distraction from real issues," "shouldn't be a constitutional issue," etc. These are fine arguments in the legislative budget debate, I guess, but are weak arguments in an election campaign.
Proposing a marriage equality amendment would put the Republicans in an untenable position. Their "let the people decide" tagline will ring hollow should they deny it a place on the ballot, and it will gut their argument that this is a choice between the people's voice and activist judges. Republicans would probably be happy to put it on the ballot, figuring that a real potential for same-sex marriage would galvanize their base. But that sword has two edges.
The strategy of waiting for a court case is a losing strategy. It will be public opinion that will bring durable marriage equality, not constitutional law. 2012 is the time to stop playing defense. It was popular opinion that finally dragged Congress kicking and screaming to end Don't Ask Don't Tell. We can win, and we should "let the people decide."
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