Minnesota Atheists is involved in a very interesting legal fight pertaining to same-sex marriage. On learning of recent developments in this case, I asked Mike Haubrich, who knows much more about it than I do, if he would write a guest post telling you all about it. Same sex marriage is an issue that demands effective activism, and the action being taken by Mn Atheists is an excellent example of this. Oh, and feel free to donate to the MN Atheist legal fund.

The Mn Atheists Brief in Benson v. Alverson
by Mike Haubrich

The issue of allowing gay marriage is for me, a no-brainer. It is a civil right, a basic human right for anyone to choose the person with whom they want to share the most important aspects of their own life. It is a basic human right to form a partnership, a lasting and loving human partnership with a member of either one’s own or another gender. I am angry at the vehemence of conservative forces opposed to this right for gay, lesbian and transgender people, this right to go beyond the “separate, but equal” civil union partnerships allowed by law but inadequate for the level of romance that people should be allowed to share with each other no matter their gender preference.

I like the idea of “life, liberty and the pursuit of happineÆ’s,” which was an ideal spelled out in the Declaration of Independence of the United States back in 1776 and for too many people this pursuit is limited by outdated laws. There are some states in the United States that have grown beyond the “ick factor” of gay marriage and issue licenses to acknowledge same sex marriages. Minnesota is not one of those states. Yet.

In 2012 there will be a proposed amendment to our state constitution to prevent future legislatures and courts from allowing same-sex marriage. Perhaps this is intended as a “wedge issue” to drive voter turnout for conservative politicians, but the effect of the proposed amendment if adopted will be to not only violate the spirit of the Declaration of Independence, but the letter of the United States Constitution. There’s that whole 14th Amendment’s incorporation of the 5th Amendment, meaning that rights granted by the federal constitution can’t be circumvented by any individual state or local government.

Such an amendment, if passed would render the state constitution of Minnesota to be self-contradictory and quite confusing for any future courts to resolve the issue if a case were to come before the Minnesota Appellate Court. Just have a look at what the court would be instructed to follow from this clause;

“No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof” from Article I, Section 2, while at the same time maintaining the proposed addition to Article XII;

“Sec. 13. Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota.”

I don’t think that there would be a way to split that baby in two and satisfy the Constition. I am not a Constitutional Law expert, of course. I just don’t understand how this could be done while remaining logically consistent.

In Minnesota there is a case coming before the State Appelate Court on October 26th, 2011 to test the laws against gay marriage. Benson v. Alverson involves the case of a gay couple who had applied for a marriage license in Hennepin County, where Minneapolis lay. They were denied in accordance with Minnesota’s version of the Defense of Marriage Act, and took the county to court for the right to get married.

David Schultz of the Hamline Law School wrote about the case in 2010 at Minnpost.com and had this to say:

In sum, the legal case to strike the ban on same-sex marriage is easy. The Minnesota Constitution offers more legal protection than does the U.S. Constitution, thereby demanding more justification under the equal-protection and freedom-of-conscience clauses to sustain the marriage ban. Based on Minnesota precedent and rulings from other states, and documented evidence of unequal treatment to same-sex couples, one can no longer conclude that limiting marriage to a man and woman furthers a rational basis or furthers any governmental interest. It is time to reject Baker and accept the idea that preventing same-sex couples from marrying is patent discrimination — no different from the anti-miscegenation laws prohibiting interracial marriages.

The case will be heard with an Amicus brief submitted by the Minnesota Atheists. Yes, we are putting words into action and supporting a clear case of injustice being propagated for religious reasons; reasons that have no justification in a secular society. Here are some of the key points of our brief:

• With no valid secular reason to deny same-sex couples equal civil marriage rights, the government is enshrining one particular religious belief (theocracy), when it should not be basing laws on any religious beliefs.

• In a Minnesota Senate Committee hearing on April 29, 2011, six religious leaders used religion as a reason to oppose same-sex marriage.

• “Ex-gay” ministries such as the Christian group Exodus and Jewish group JONAH believe homosexuality is “outside of God’s will” and attempt to change gay people’s sexual orientations.

• The American Psychiatric Association and the American Medial Association support legal recognition of same-sex unions.

 

August Berkshire, the president of the Minnesota Atheists, engaged the services of Marshall Tanick a partner in the legal firm Mansfield, Tanick and Cohen to write the brief. When August sought the approval of the board to file an amicus curae we were each enthusiastic for a few reasons.

• The Minnesota Atheists have long been committed to seeing that gays, lesbians, bisexuals and transgenders are afforded all of the rights that come with being residents of Minnesota and citizens of the United States.
• We have participated by marching with GLBT’s in Minneapolis’ and other cities’ Pride Parades.
• We saw this as an opportunity to expand our mission to create change in our society through legal activism.

In the brief, Tanick makes several points on the religious and theocratic nature of the laws against same-sex marriage. The most poignant is this:

“but the law cannot, in a secular society, enact, endorse or enforce proscriptions that emanate solely from the wellspring of a religious dogma or a particular denomination or any sect that seeks to advance a sectarian viewpoint.”

<The brief, in pdf format, may be viewed here.

We are confident that the case will be sent to the Minnesota Supreme Court whether the Appellate Court rules in favor of the plaintiffs or the respondents. If so, we will file an amicus for that case as well. We hope that the matter is settled once and for all in favor of equal rights for same-sex couples to marry, but we also need a bit of help raising money for the additional filing. We have created a legal fund to support our efforts to bring the atheist viewpoint on this issue to the State Supreme Court and ask you to donate some much needed funds:

Minnesota Atheists has begun a new phase of activity, that of legal activism. We have filled an amicus brief in the Minnesota Appellate Court in the case of Benson v. Alverson, asking the court to recognize the equal marriage rights of same-sex couples. Whichever way the Minnesota Appellate Court rules, we expect the case will move to the Minnesota Supreme Court. At that point we will amend our brief and file with that court too. Minnesota Atheists is bringing a hard-hitting, separation of state and church argument to bear on the case. We are the only group to file such a brief on behalf of the appellants. We expect our final costs to be about $5,000. We thank you for your donation to help atheists have their unique say in this legal matter before our state courts. A donation of $50 entitles you to attend our special fundraiser on Oct. 9 (more information available soon).

I don’t know how the vote will go in 2012 on the “Marriage Amendment.” Even if the forces of sanity prevail and the Amendment is sent to the dustbin where it belongs, it changes nothing as long as the Minnesota Defense of Marriage Act remains on the books unchallenged. A victory in the Appellate Court and then the Supreme Court would truly effect change in favor of civil rights in Minnesota.

Please support us in our efforts here. Give a little, give a lot but give for real marriage.

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