While the continued debate about same-sex marriage is playing out state by state, and we wait to see if the U.S. Supreme Court will take on California Proposition 8, this article attempts to tell the story of how, in Minnesota, many of the state's barristers have united in opposition to the amendment and raised the question: What unique role, if any, should lawyers have in the legal debate about whether marriage between a man and woman should be written into a state's constitution?
Setting the Stage—Minnesota
To tell the story of how Minnesota lawyers have united, it is first necessary to explain the state's history on same-sex marriage. The landscape in Minnesota can be described as a steady movement from ambiguity in the law to express ban of same-sex marriage. Minnesota's earliest marriage laws did not address gender, but contained limitations on marriage for "imbeciles," epileptics, and children under the age of 14. In 1971, the Minnesota Supreme Court became one of the earliest state courts to decide the issue, and ruled that it was "unrealistic" to think the draftsman intended the law to include marriage as anything other than between a man and woman. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). In 1977, the legislature amended the law to say, "Marriage, so far as its validity in law is concerned, is a civil contract between a man and a woman." Laws of Minn. 1977, Ch. 441, sec. 1, amending Minn. Stat. § 517.01. Twenty years later, the state legislature officially banned same-sex marriage. Laws of Minn. 1997, ch. 203, art. 10, amending Minn. Stat. §§ 517.01 and 517.03. Now, in 2012, the people will vote on whether that ban should be memorialized in the state's constitution. The main group supporting the amendment is Minnesota for Marriage. The group leading the opposition is Minnesotans United for All Families.
A Little About Minnesota
Minnesota has four law schools at the University of Minnesota, Hamline University, University of St. Thomas, and the William Mitchell College of Law. There are more than 8,000 attorneys in the Minneapolis-St. Paul area. Some of Minnesota's most prominent lawyers include U.S. Supreme Court Justices Pierce Butler and Harry Blackmun, and U.S. Chief Justice Warren Burger.
Minnesota has a significant LGBT population as well. According to data collected from the 2010 census, Minnesota has more than 10,000 same-sex-identified couples, placing the state 23rd in the country for per capita same-sex households (Williams Institute Study, available here). The Williams Institute listed Minneapolis fourth below San Francisco, Seattle, and Oakland, for largest same-sex-couple population in a large city. In February 2011, The Advocate named Minneapolis the nation's "gayest" city.
On the other hand, Minnesota is also the home of Michele Bachmann—who calls homosexuality "sexual dysfunction"—and made national news for a controversial and recently changed school bullying policy in its Anoka-Hennepin school district that was accused of leading to several suicides by LGBT or LGBT-perceived teens. Finally, Archbishop John Nienstedt, who strongly opposes same sex unions, has committed more than $600,000 from the Catholic Church towards passing the amendment. He has also attempted to mobilize the more than a million identified Catholics in the state to vote yes on the amendment. This has led to some dissention, with "Another Catholic Voting No" signs sprouting amidst the ubiquitous vote-no and vote-yes signs.
Lawyers (Mostly) United Against the Amendment
Since the state legislature put the amendment on the ballot in May 2011, hundreds of businesses, faith communities, professional organizations, neighborhood organizations, and other groups have signed up for the Minnesotans United for All Families coalition partner list.
In March 2012, Lawyers United was formed by former U.S. Vice President Walter Mondale and former Minnesota Supreme Court Chief Justice Kathleen Blatz. In forming the group, the prominent lawyers co-signed a letter urging the legal community to mobilize and vote no on the amendment and stating that: "Constitutions should be amended only to address problems that find no other solution. Therefore, as concerned citizens and members of the legal community, we need to stand up against the efforts to legislate by constitutional amendment."
"The legal community is working with Minnesotans United for All Families, the official campaign to defeat the anti-marriage amendment," the letter continued. "We are mobilizing within law firms, within in-house legal departments, and within academic and public institutions across the state. We are calling our effort Lawyers United for All Families."
Faculty at the William Mitchell College of Law passed a resolution in opposition to the amendment, nothing that: "Discrimination in civil rights on the basis of sexual orientation or gender identity is wrong. Because the constitutional amendment operates solely to limit the rights of same-sex couples, the anti-Marriage Amendment is perceived as discriminatory by GLBT persons, their families and their supporters. … As a Faculty of Law, we believe that limitations on civil rights should not be enshrined in our state constitution." In May, the University Senate of the University of Minnesota, which is composed of faculty, staff, and student representatives, also resolved to oppose the amendment.
In addition to two of the four law schools, several legal organizations also have joined in the vote-no coalition. This list includes the Minnesota State Bar Association, the Hennepin County Bar Association, the Minnesota Association for Justice (Trial Lawyers), and the Minnesota Lavender Bar Association. These groups are all listed as coalition partners to Minnesota United, and it is worth noting that other lawyer-led LGBT-promoting organizations like Outfront Minnesota and Project 515 are part of the coalition as well.
Lawyers Coming Out in Favor of the Amendment
Some lawyers in the state have openly supported the amendment. Although the University of St. Thomas has officially announced a neutrality position, at least one of its School of Law faculty members has not been neutral. Prominent professor Teresa Stanton Collett is a strong force in favor of the amendment and has been so for years. See Teresa Stanton Collett, Constitutional Confusion: The Case for the Minnesota Marriage Amendment, 33 Wm. Mitchell L. Rev. 1029 (2007). Minnesota for Marriage recently hosted an event in the law school's atrium titled "What the future looks like if marriage in Minnesota is redefined—A Canadian perspective."
Mirroring the Lawyers United group are two small lawyer-based groups supporting the amendment. On the Minnesota for Marriage website, there is a supporting group called Lawyers for Freedom and Marriage that lists only three members on its official website. There is also a group on the Minnesota for Marriage website called Lawyers for Marriage that includes Collett and three other attorneys. Aside from these groups, which appear to be very small, there are no law firms, legal organizations, or prominent lawyers listed on Minnesota for Marriage's website. It is safe to say that, of the lawyers making a stand, the vast majority are in opposition to the amendment.
Not every law school and law firm has taken a stand. Hamline University's official stance is neutral. But keeping a stance of neutrality has led to unofficial declarations of opposition. For example, in early October, Hamline's stance of neutrality led to a peaceful "rally against neutrality" organized by students, alumni, faculty, staff, and community members who oppose the amendment. Of the legal organizations that have taken a stand, there are members who have expressed dissent. For example, when the Hennepin County Bar Association passed its resolution in opposition to the amendment, some members questioned the need for the resolution. One member observed: "I question what this highly controversial (and for many people deeply personal) political vote in November really has to do with the functioning of this county bar association." See http://hennepin.membershipsoftware.org/article_content.asp?article=1624. In looking at sheer numbers, it appears most law firms and legal organizations have not supported either side.
Lawyers' Unique Role
As outlined above, the marriage amendment debate in Minnesota is one in which many lawyers or legal groups—indeed, the state bar association—have voiced an opinion, with most groups opposing the amendment. This action by lawyers may be inspiring (at least for those who oppose the amendment, like myself) but it is hard to say it is surprising. Lawyers have a history of taking stands, particularly where the Constitution is involved. And for good reason, no matter what the outcome, lawyers spend their lives supporting the constitution. In Minnesota, lawyers must take the following oath:
You do swear that you will support the Constitution of the United States and that of the state of Minnesota, and will conduct yourself as an attorney and counselor at law in an upright and courteous manner, to the best of your learning and ability, with all good fidelity as well to the court as to the client, and that you will use no falsehood or deceit, nor delay any person's cause for lucre or malice. So help you God.
Minn. Stat. § 358.07(9).
As a group of people who study the law, study the Constitution, and promise to support the Constitution, it is safe to say that lawyers are uniquely qualified to take a stand. While neutrality on social issues may seem desirable in many ways (and required for some positions, such as state judges), the argument for neutrality regarding the passage of an amendment to the state's constitution, which lawyers swear to support, is much less convincing. Also, as lawyers, we arguably have an obligation to ensure that people understand the amendment. What does voting yes mean? What does voting no mean? Whether filling the role of advocate, educator, or both, there is certainly a place for lawyers in the debate. In deciding whether to unite with lawyers on one side of the debate or the other, we should not underestimate our unique position and stake in the outcome.
As lawyers, we swear to uphold the Constitution, and as a general matter, treat it as a touchstone for all of our laws and judicial decisions. To echo the sentiment of Mondale and Blatz, "We may disagree on how best to recognize committed same-sex couples, but I believe quite firmly that legislating this issue by constitutional amendment is both inappropriate and a threat to the legacy of our state." We do not know what the results of the election in Minnesota will be, but we hope that, as the debate continues across the country, the story of lawyers uniting in Minnesota will serve as an inspiration for all lawyers, particularly LGBT litigators to think strongly about the legal side of things, the role of the constitution, and our unique role in this debate. Every lawyer has a choice. To the extent the same-sex marriage debate involves the Constitution, lawyers have a vested interest in the outcome.
Keywords: litigation, LGBT, lesbian, gay, bisexual, transgender, same-sex marriage, Minnesota, Lawyers United, Archbishop John Nienstedt, Teresa Stanton Collett, Constitution of the United States