“Earnest Money:” Repeal DOMA Now!

Some have commented my article “The DFL’s Big Gay Farce” is too dismissive of Minnesota Democrats’ efforts for same-sex marriage.  They argue it is too difficult and politically perilous for the victorious DFL party to enact same-sex marriage benefits so soon after the rousing defeat of the marriage amendment to the state constitution.  We need to wait, garner more support, and work harder than ever to change the political landscape and create conditions for the eventual passage of same-sex marriage in this state.

I don’t think that is true, but in the spirit of compromise and fairness I will proffer this deal.

Repeal the state DOMA law as a kind of “down payment” proving the DFL’s good intentions in the matter.  It wouldn’t be difficult.  It wouldn’t be that big of a deal and besides, with a DFL controlled state house and senate and governor, it should be a cinch.

Here is the dilemma as Strib columnist Lori Sturdevant explains it from November 17, 2012.

“But does that mean Minnesota is ‘close to legalizing gay marriage”?

It’s certainly closer than it was a year ago. But my bet is that the new DFL majorities in the House and Senate will be in no hurry to take up a repeal of the state’s Defense of Marriage Act, the statutory same-sex marriage ban that’s been on the books since 1997.”

Sturdevant seems to be under the impression that same-sex marriage and the state DOMA law are one in the same.  Au contraire.  She has conflated two different issues within the same argument.  The state DOMA law, or Defense of Marriage Act, is different from legalizing same-sex marriage.  The Minnesota legislature could repeal DOMA itself and still not enact same-sex marriage.  Let’s go to the Minnesota Legislative Library for the history of it.

“The Baker v. Nelson decision (291 Minn. 310, 191 N.W.2d 185) in 1971 held that Minnesota Statutes prohibited marriages between same-sex partners. The case was appealed to the United States Supreme Court. They issued a one sentence dismissal of the appeal (409 U.S. 810, 34 L Ed 2d 65, 93 S Ct 37; October 10, 1972) that stated “The appeal is dismissed for want of a substantial federal question.” Another significant event was the passage of Laws of Minnesota 1977, Chapter 441, sec. 1. It amended Minnesota Statutes chapter 517.01 which included the phrase “Marriage, so far as its validity in law is concerned, is a civil contract.” To the end of this sentence they added the words “between a man and a woman.”

But, this isn’t the state DOMA law at all.  This was a change in the law that made marriage only “between a man and a woman.”  The state DOMA law is an entirely different thing.

“In 1997, the Minnesota Legislature passed its own version of what has been referred to as the Defense of Marriage Act (Laws of Minnesota 1997, Chapter 203, Article 10). The governor approved it on June 2, 1997. This act clarified that “lawful marriage may be contracted only between persons of the opposite sex” and went on to specifically prohibit “marriage between persons of the same sex” (Minnesota Statutes chapter 517.01 and 517.03).”

Let’s examine what Article 10 prohibits:

“(4) A marriage between persons of the same sex. (b) A marriage entered into by persons of the same sex, either under common law or statute, that is recognized by another state or foreign jurisdiction is void in this state and contractual rights granted by virtue of the marriage or its termination are unenforceable in this state.

“So, if the Minnesota legislature repealed the state’s DOMA law, it wouldn’t make same-sex marriage legal in the state.  They could leave the earlier law in place that restricts marriage to being “between a man and a woman.”

There would be no same-sex marriage “civil contracts” issued by the state, but would allow people married outside this jurisdiction to have their status accepted by courts.  In other words, if my partner and I ran off and got married in Iowa or New York, we could have a legal marriage, just not one recognized by Minnesota.  Our state courts could use that status as “married” when considering legal conflicts.

It’s not ideal, but it would be a kind of “layaway plan” proving the DFL’s good intentions regarding the GLBT community.  The DFL would then demonstrate they appreciate Minnesota United for All Families’ efforts at getting them elected.

It would be like earnest money on a piece of property.  This would show they are willing to repeal a piece of legislation that is restrictive to gays and lesbians who get married elsewhere while at the same time leave same-sex marriage off the table.  DFLers could argue they didn’t make gay marriage the law of the land.  They simply showed “good faith” to valued allies.  Then the GLBT community could see the Minnesota Democrats were truly committed to our values.

It’s the least they could do, the very least.  But it would be a start.


Contact Your Politicians
Governor Mark Dayton
Phone: (651) 201-3400
Email: http://mn.gov/governor/contact-us/form/ (Web Contact Form)

Senator Tom Bakk
Phone: (651) 296-8881
Email: [email protected]

Representative Paul Thissen
Phone: (651) 296-5375
Email: [email protected]

Representative Erin Murphy
Phone: (651) 296-5496
Email:  [email protected]

See also:
“The DFL’s Big Gay Farce” from Issue 457, November 29, 2012
“Three of Four Top Elected Minnesota Politicians Comment on the Marriage Debate” from Issue 458, December 13, 2012
“‘Earnest Money:’ Repeal DOMA Now” from Issue 458, December 13, 2012
“Why We Can’t Wait” an Interview with Sen. John Marty from Issue 460, January 10, 2013
Waiting for Superman” from Issue 460, January 10, 2013

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