In a recent article in the West Central Tribune, Marie Failinger, professor of constitutional law at Hamline University, tries to convince us the Minnesota marriage amendment is inappropriate. She states the constitution is intended to protect people's rights rather than restrict them.
The fact is the proposed amendment neither limits nor expands anyone's rights. It simply elevates our current definition of marriage, as now defined within our laws, to the level of a constitutional amendment. This makes it more difficult for an activist judge to overturn our laws.
Failinger also tries to persuade us that the marriage amendment is unnecessary. Citing the 1971 Minnesota Supreme Court case of Baker v. Nelson, Failinger states, "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."
Failinger's position seems flawed on several levels. First, the petitioners' claim in Baker v. Nelson was made in reference to the United States Constitution, not the Minnesota Constitution. There appears to be no precedence indicating how the Minnesota Supreme Court might rule on a case challenging Minnesota's marriage statutes under the Minnesota Constitution. Secondly, Failinger conveniently fails to disclose a number of relevant facts, including:
n Activist judges have now overturned marriage laws in eight states.
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n 19 states have now passed marriage amendments.
n 15 of these states already had Defense of Marriage Acts on their books.
n A Washington state judge recently issued a decision in which she stated the 1971 case of Baker v. Nelson is probably no longer relevant given more recent rulings such as Lawrence v. Texas.
I must acknowledge that I am not an attorney and thus lack the many years of education and experience that Failinger most certainly possesses as a professor of constitutional law. I would therefore stand humbly corrected should my understanding of the law be inaccurate. However, I cannot help but wonder if her political viewpoints are not clouding her professional judgment and honesty in this matter.
Jeffrey J. Davis
President, Minnesota Citizens in Defense of Marriage
