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Should Minnesota legislate human rights or let the courts do it?

by gregladen on November 11, 2012 · 1 comment

An anti-same sex marriage amendment was on the ballot this year in Minnesota. It was defeated, but there is still an anit same sex marriage law on the books which obviously has to be removed somehow. The new legislative leaders in Saint Paul, following a total change in ruling party, has said they won’t be addressing same sex marriage in the immediate future, and I’ve heard estimates of one or even two years before it is taken up.

There were a handful of overlapping reasons why there was an anti same sex marriage amendment, as well as a voter suppression amendment (an amendment that would have repressed liberal and progressive voters) on Minnesota’s ballot this year, in my estimation. They include:

1) The legislature was ruled by a tea party infused Republican majority and such entities often develop legislation or other actions that take away the rights of non caucasoid-heter-normatives because the tea party Republican base is, like the old chant says, “racist, sexist, anti gay.” Those are facts that won’t go away.

2) This particular legislature had a problem we find increasingly in tea party infused Republican majorities. Not only do they spend considerable effort ascertaining what the Democrats want in order to formulate a corresponding Bizarro-Policy which is simply the opposite of that, but they also oppose any of their own attempts at thinking about legislation, as a special subset of their valiant and wildly successful efforts to oppose any of their own attempts at thinking. This meant that legislation of anything was not really an option for them. Faced with manufactured concerns (concern is, increasingly, one of the few things we manufacture these days in the US, though I hear China is getting into the game) about Democrats voting and gay people existing, they created amendments that the voters, who as a rule vote against minorities in the US, could then vote on.

3) They’re coming. Who? The children, the teenagers. I heard recently that an informal poll about the marriage amendment, taken among the mostly pre-voting age teenagers serving as legislative pages in Saint Paul, from across the state and working for members of both parties, showed a virtual unanimity; they all opposed it. One page said to her legislator, “We’re coming, you know. In a few years it will be impossible to legislate against same sex marriage.” Thus, a Constitutional amendment rather than a mere bill which, by the way, we already had one of thank you very much.

4) A distraction. If you’ve done nothing but annoy people for two entire years and the party you represent is under fire in various legal venues and out of money, it is a good plan to formulate an issue that gets all the activists to work on something other than your de-throning.

None of this worked. First, being a dick can get you elected during a “sweep” year, but it does not keep you in office. Second, we noticed the ineffectiveness; even the mainstream press kinda noticed that nothing was happening in the legislature. Most people think that the legislature did only two things all year: Make these awful amendments about marriage and voting, and get a stadium bill passed, and we all saw the legislate unable to manage the stadium bill until a bunch of rich guys went privately into their offices and explained something, we don’t know what, to them. So, the legislature does nothing for the people but does work very well with the NFL and Ziggy. Not impressive. Third, not only are they coming, but they are already here. You don’t have to be of voting age to spend 25 hours a week door knocking and phone banking and all that other stuff, and thus, fourth, this was not much of a distraction. As Joe Bodell points out, the marriage amendment did not sweep a DFL majority into office as one might think, but there was not that much effort shifted towards its defeat. Rather, a large number of previously mostly inactive resources activated. And, by the way, we should do what we can to keep that resource going, as unlikely as that may be.

So, many of us progressive types were rather disturbed when we heard that the DFL leadership was going to drop the ball on gay marriage. A resounding defeat of an anti gay marriage constitutional amendment is a virtual mandate, perhaps even a demand, and certainly an opportunity, for the legislature to jump in, get rid of the existing anti-gay laws as fast as possible, like how Jimmy Carter signed that highly controversial executive order practically while still on stage at his inauguration, and then move on to other important issues like Green Energy (please) and the Budget (which should be rote but for some reason this state can never manage).

But will they? They don’t have to. You’ve heard of the phrase, often used by our brothers and sisters on the wrong, I mean, “right,” side of the aisle: “Legislate from the bench.” This is when the courts do something that you might have figured that the governing legislative body would have done. What really happens, of course, is one of two things: 1) The legislature or Congress is gridlocked, or a deer in the headlights, or for some other reason simply can’t do their jobs or 2) they do their jobs but they do it wrong, and then a court has to step in and fix it. So it is really “fixing legislation from the bench.” And, in my view, the existing marriage law in Minnesota is vulnerable to court intervention.

In a world where the Republicans controlled one or both houses of the legislature and/or the governorship that would be a reasonable option. In a world where the DFL controls all three, a judicial remedy to this codified violation of human rights is an embarrassment and, frankly, an outrage.

Here is my personal plan and I invite you to join me in it. I am going to do the following:

1) Contact through the usual means, plus meet with, my two representatives in the State House and tell them that I want them to move quickly and decisively to change the same sex marriage law. (I’ve already started that process, and one of the two is so far sympathetic to this plan.)

2) Define my volunteer hours, rather than simply provide them. I’ll tell my representatives in the state house that they can each have a specific number of hours of my time, phone banking, walking and door knocking, and doing other things during their next election. They get X hours if same sex marriage is gone by the time they could use my help, X/2 (half) if it isn’t. Rubber? I’d like to introduce you to Road. Right there. If a given representative has even 10 people making this promise, that is a LOT of volunteer hours for one house or senate district.


You can get a PDF of this particular certificate HERE, or you can make your own!


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