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Ritchie Was Right On Same-Sex Marriage Wording: Letter to the Editor

Dale Carpenter is a professor of constitutional law at the University of Minnesota.

Editor's Note: Prof. Dale Carpenter sent in this note in response to about Minnesota of a title for a constitution amendment on the 2012 ballot that would ban same-sex marriage.

One thing the news outlets have been missing is that it's actually the legal responsibility of the secretary of state, not the legislature, to determine the ballot title.

That has been the case since 1919, when the Secretary of State was given authority to choose an "appropriate title" for amendments passed by the legislature. The idea is that the governmental body that wants the amendment should not be allowed single-handedly to stack the deck in its favor by choosing the title as well.

It's a basic matter of separation of powers. In the case of the marriage amendment, the legislature tried to impose language designed to help pass the amendment. The Secretary of State has now corrected that by choosing one that accurately characterizes the amendment. There was nothing improper about his action. In fact, he had the legal obligation to exercise independent judgment about it.

Carpenter is a noted scholar of constitutional law, the Earl R. Larson professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School, and the treasurer of Minnesotans United for All Families.

John Kysylyczyn July 06, 2012 at 02:39 PM
Well Randy, where are your articles that cite various legal cases that support your position?
C July 06, 2012 at 04:21 PM
I assume that Donald and the other limited government people who post on this website will be voting no. The pursuit of happiness is a right guaranteed by the federal constitution. Same-sex marriage poses no danger or undue hardship to the citizens of this country. Therefore government should not be treading upon this right.
Brad Kadue July 06, 2012 at 04:47 PM
Your almost there Chris, but not quite. The truly libertarian position on this issue is that government (state or federal) should not recognize ANY marriage, not that government should recognize ALL marriage. Why should government pass any legislation that favors a group of people who choose to "marry" over a group of people who choose not to marry?
Donald Lee July 06, 2012 at 04:52 PM
I plan to vote "yes". State involvement in marriage is not about love, or rights, or happiness. It is about enforcing contract, and ensuring that the children produced by the union have both of the adults who "procreated" them firmly committed to their upbringing. The threat posed by "same sex marriage" is very real. It's about punishing me if I disagree. Almost no one wants to change the definition of marriage out of a desire for "more freedom". I believe that sexuality has a moral dimension, and homosexuality is wrong. Proponents of genderless marriage insist that it is about "civil rights". They insist that I am a hater and a bigot. They commonly support the use of the law to force me to accept what I consider immoral. They insist that public schools should teach my children that I am a bigot as well. People who want to do what they please, and stay out of my hair, are no threat to me, and I have no quarrel with them. People who insist on using the law to enact their agenda - that I strongly oppose - will meet my firm opposition. This amendment would have no purpose if it were not for the constant drumbeat to legalize "same sex marriage", and enforce "equality" coming from the left. Efforts in the legislature, by executive order, and in the courts are frequently in the news. Freedom means keeping the right to disapprove, and act on that disapproval. That is exactly what the marriage revolutionaries want to take from me.
Donald Lee July 06, 2012 at 05:02 PM
Mr Marsh appears not to have read the articles I provided. The first points out the numerous court cases complaining about the wording on the ballot, and the MN Supremes saying "Nope - the ballot question can be wildly different, or very brief, as long as it's not clearly misleading". "The Source" is not really relevant. Read the cases. The second article points out that the SOS has no *power* (no authority, no ability under law) to change the ballot title, once the legislature has specified it. Read the statutes.
rob_h78 July 06, 2012 at 05:37 PM
Amazing how people who believe Limited Government have no problem pushing government into our faces when it suits their beliefs. So, how does not allowing gay people ensure that children produced have both parents committed to their upbringing? Gay marriage is currently not legal and we can't guarantee anything like that - how will will voting yes ensure this desire? I have relatives who still oppose mixed race marriage - they believe it is wrong and against God's desires - should we put mixed race marriage up for a popular vote? If people really want to protect marriage, and protect children then Conservatives should be pushing to eliminate No-Fault Divorces and put up barriers to divorce once children are brought into the picture and allow divorce only in the most extreme situations.
rob_h78 July 06, 2012 at 05:40 PM
Brad - with that I agree - we should not have the government involved in the concept of marriage at all. If people want to enter into some type of arrangement where they want rights and obligations defined if such an arrangement at some point fails we have an entire legal system of Contract Law that could easily step in and take care of such things, including Implied Contract law for children born outside of such a legal arrangement. However, the government should also not be taking marriage into consideration for tax law, etc.... But once the government does enter the picture (as it is) and decides to give perks away based on something then that "something" and those perks need to be available to all citizens.
Kevin O'Donovan July 06, 2012 at 06:40 PM
Mr.Lee is entirely right. Supporters of the Marriage Amendment do believe in the benefits of a limited government. Progressives generally believe in a government without boundaries. We live in a Constitutional Republic. State and Federal Constitutions can be amended, language can be added to provide clarity. Conservatives tend to accept the common understanding of words, and rely on them to communicate ideas. Most people know that how a question is stated can elicit a desired response more frequently. Remember the proposed amendment retains what is already understood and accepted. Why didnt supporters of homosexual marriage offer their own amendment, one that would have legalized homosexual marriage? It never was offered in all the years that the DFL was in the majority. Is it because they did not want it put to a vote? Were they looking for a sympathetic judge?
Randy Marsh July 06, 2012 at 06:44 PM
Donald, I hope you will also offer up what you're doing to protect society from all those single mothers having sex out of wedlock and how you plan to penalize the fathers in those same instances for their immorality. I don't recall your presumed moral authority supporting those actions and yet you appear willing to allow that to continue. Just how do you resolve the hypocrisy of supporting government's intrusion into the personal lives of citizens and then in the same breath condemn larger government? I guess freedom depends on Your point of view. Also, I did read those the articles connected to those links, but I also don't look at the writings of the KKK for their thoughts on the civil rights amendment. Interpreting the law is rarely black and white, but I'm sure you already know that. Based on your logic, the GOP-controlled legislature should be allowed to label the voter ID question as: Do you love America or want to see it taken over by foreigners?
Donald Lee July 06, 2012 at 07:24 PM
The law is currently full of provisions that attempt to ensure that those who produce children remain responsible for their upbringing. Current child support, alimony, custody, various divorce laws, inheritance all are indirectly focused on this goal. Many of these laws would require massive change if traditional marriage falls. Consider Adam and Steve are "married". Adam has an affair with Joan, who has a baby. Who is responsible for the baby? All 3 "partners"? Does Steve have rights to custody? Who inherits what? What if Adam and Steve "divorce"? Homosexual couples can acquire children. They cannot and do not produce them. That said, I do not support increased government involvement in marriage. I support only the involvement that is required for good order and enforcement of contract. Whenever possible, citizens should be free to make their own arrangements as they wish. Supporting traditional marriage in the law is not "pushing government" into someone's face. It is supporting the status quo. It is opposing a radical transformation of a basic legal concept and fundamental societal institution. It is opposing those who want to eliminate the ability of Christians, Jews, Muslims and others to teach their children about sexual morality by defining those parents as lawbreakers. No, sir. It is those who want to transform marriage who are "pushing government" into my face.
Donald Lee July 06, 2012 at 07:31 PM
I find that to be a key difference, and a great irony. Progressives tend to be more suspicious of the law, believing generally that the ends justify the means, and therefore the law becomes little more than a tool to achieve partisan ends. Believing that, the law is suspect as a tool of the opposition. The irony is that even though the law is suspect, the government is not. Government tends to be reviled by progressives as "wrong" on most things, but then the fix is to give it more power, more money, and more responsibility.
John Kysylyczyn July 06, 2012 at 08:17 PM
Wow, we have gotten way off topic!
C July 06, 2012 at 08:18 PM
"I favor people being free to make their own choices AND shoulder the consequences of their actions. Do you favor something else? (If my choices are not my own, who will decide what I may do? )" Ohhh - now, I know the answer..... the neo-con, tea-party, faux-libertarian, nation-under-God, founding-father-myth adherents will decide. Well, at least that's settled. Brad, I agree. Government shouldn't recognize any "marriages". As far as government is concerned, it should just be a contract that binds people together legally and financially. People who've entered these contracts should receive no tax or other governmental benefits beyond what those who haven't get. I do think that there should be significant tax breaks for people with children - whether they're "under contract" or not. It's extremely important to our nation's future financial success to maintain or even increase our birthrate and kids cost a lot of money. But again, DINK's under contract shouldn't get any benefits beyond what people who aren't under contract receive.
C July 06, 2012 at 08:23 PM
John, yes and sorry. Some of the stuff people say on here just grates my rear. It makes it hard to stay on topic. Now about that Ritchie character...
Donald Lee July 06, 2012 at 09:04 PM
What do they say about the butterfly in Brazil flapping its wings causing weather in North Dakota? ;->
Donald Lee July 06, 2012 at 09:07 PM
I have sympathy for the "no government recognition of marriage" position, but I don't think it works, partly because someone has to enforce the contract. For the rest.... that's off topic.
Curtis July 16, 2012 at 08:14 PM
I don't think I would quibble over whether Secretary of State Mark Richie has the authority to provide a title to an amendment to clearly characterize the amendment. I do have a problem with an elected official in charge of making sure we have fair and honest elections using the powers of his office to title an amendment to slant the outcome in his favor. He and Attorney General Lori Swanson aren't even embarrassed by this thinly veiled attempt to influence the outcome of the election. If he were performing his job honorably we won't even know his position on the election. Where is the outrage of this morally corrupt decision? Legal, yes; moral, no. How can we have faith that he will execute the powers of his office in a fair manner? For those of you who will reactively defend his actions think ahead to the time when your opposition will occupy that same office. Could you support the next Secretary of State creating a title for an amendment you supported in a manner to confuse and discourage voting? I think not.
Randy Marsh July 16, 2012 at 09:20 PM
You make some excellent points, Curtis, especially by noting the hypocrisy of those who support Richie because of how they feel about this issue rather than a philosophical judgement based on the office of SOS rather than who currently occupies it. I do, however, not agree that he doesn't have the right to re-label (at least on the marriage amendment, because I think he made things worse with his reworking the voter ID title) because I do believe a strong case can be made he has that power. What I would ask you is whether the ruling party in the legislature which can bypass the governor and put these questions directly on the ballot should themselves have the authority to title the amendments in any way that they choose? Haven't the elected legislators already slanted the questions to suit their purposes, yet you don't seem to have a problem with that. What about the judges who have a particular party affiliation, should they be treated in the same manner you would suggest for the SOS? How would you suggest the SOS be determined. Clearly you support the legislators not doing their jobs by going straight to the voters with these amendments, yet have a problem with the same voters choosing a SOS that will administer fair and honest elections. Look the mirror, because you can't have it both ways.
John Kysylyczyn July 16, 2012 at 10:09 PM
Randy, when you use such slanted language like "bypass the governor" it makes it difficult to have a discussion on the legality of the issue. Let me be crystal clear. The Legislature DID NOT bypass the governor. The Legislature CANNOT send a constitutional amendment to his desk no matter how much they want to. THE PEOPLE of the State of Minnesota voted in the constitution and all of it's amendments. The Legislature only had the role of casting their individual votes at the ballot box.
David July 17, 2012 at 06:38 AM
Donald's links show that Randy is not correct. Ritchie does NOT have the authority to reword the title of an amendment that has been supplied by the legislature. He is also not correct that it is 'bypassing' the governor. The Constitution gives the legislature the power to send amendments directly to the people and it excludes the governor from intervening. So the people themselves have told the governor to "butt out" and will decide the matter for themselves this November. And yes, the Legislature has the authority to title amendments any way they choose just as they have the authority to word the amendment any way they choose so long as it meets the one constitutional requirement of not being misleading. And the MNSC will decide if it meets that requirement. The legislature DID do their jobs and sent a bill to Dayton who promptly vetoed it according to his party masters' wishes. The MN Constitution gives the legislature another venue to bring forth law and they exercised that legal power. Just because you don't like that they have a way to overcome the Dayton roadblock doesn't make it immoral or illegal no matter how liberals 'feel' about it. This is law, and here is one instance where liberals can't use judges or state officials to ignore it.
Donald Lee July 17, 2012 at 04:36 PM
To Curtis: well said. To Mr. Marsh: The legislature makes the laws. If you read the Minnesota Constitution, that is made very clear. They made the statute that gave the SOS authority to provide titles. They wrote the bill that put the questions on the ballot this fall *with* a specified title.
rob_h78 July 17, 2012 at 04:58 PM
Fortunately we don't yet solve legal questions by competing blogs on the internet or by comments made by people who are anonymous... So the question will go to court and be decided.
Donald Lee July 17, 2012 at 05:05 PM
Note the tag line on the author of the letter - treasurer of "Minnesotans United for All Families" - a major opponent of one of the amendments. The author cannot be presumed unbiased.
John Kysylyczyn September 03, 2012 at 04:10 AM
The Court has now weighed in. Basically separation of powers argument won the day. Now it is up to the people to decide. The legislature can only place questions before the voters. They don't go into effect until the people vote in the affirmative. I'm happy groups like the League of Women Voters lost. I did not appreciate how some of them talked about how they wanted to keep this off the ballot, or in other words, take away our right to vote.
Donald Lee October 16, 2012 at 05:00 PM
I think this comment is spam.....
David Henke (Editor) October 16, 2012 at 05:38 PM
Hey Don~ Thanks for pointing it out. I've removed the comment in question.
Donald Lee October 16, 2012 at 06:15 PM
Thank you - the two right below that one look like the same kind of spam, too.
David Henke (Editor) October 16, 2012 at 06:17 PM
Got them. Thanks again, Don!
Donald Lee November 24, 2012 at 06:38 PM
more comment spam!
Andrea Parrott November 24, 2012 at 07:39 PM
Thanks! Got it.

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