A constitutional law professor says the United States Constitution and the Minnesota Constitution are intended to protect people's rights, rather than restrict them.
"One of the things people have to remember about amendments is they're very difficult to change. They're really anti-democratic,'' says Marie A. Failinger, professor of constitutional law at Hamline University School of Law in St. Paul.
"I think whenever someone proposes an amendment, they say this is a chance for the people to vote on something. But once you have an amendment ... it prevents the people from changing the law,'' she said.
"And that's why certainly, historically, in the United States Constitution, most of the amendments have been rights-protective amendments. They're trying to protect minorities against majorities who they're afraid might harm minority groups in a fit of passion,'' Failinger told the Tribune in a phone interview from her Hamline office.
Failinger said amendments prohibiting same-sex marriage are being proposed because people argue that judges will interpret state constitutions or the U.S. Constitution in a way that would protect the rights of same-sex couples to get married.
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"Of course, there's no absolute guarantee that that won't happen. It's happened in Massachusetts and happened in Canada and some other places, to honor those protections,'' she said.
On the other hand, the Minnesota Supreme Court ruled in a case in 1971 that same-sex marriage is not permitted by state law or the state Constitution, and the Legislature has passed a law which states that marriage is between a man and a woman.
Because state law and the state Supreme Court have said "no,'' Failinger believes an amendment is not needed, and she thinks the court is unlikely to overturn both the statute and the precedent.
"Our court was one of the first to say no -- the Minnesota Constitution doesn't protect same-sex marriage -- so the chances that the court would reverse itself, I think, are probably quite slim,'' said Failinger.
"I'm more sympathetic to the issue, but I think the main point is why not let the people make a decision on this through the regular (legislative) process, which is they vote for representatives and the representatives decide if they're going to change the law or not,'' she said.
The request by amendment proponents for a popular vote sounds democratic, says Failinger, but approval would restrict the rights of a future public that which might support same-sex marriage. She said removing an amendment is more difficult than approving it or having lawmakers change a statute or law.
"They're really taking away the rights of future generations to change their mind about this question, which is anti-democratic,'' says Failinger. " ... In this particular case, it's taking away the chance for the people to vote for a change in their marriage law.''
