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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
So the question will go to court and be decided.
The author cannot be presumed unbiased.
Thanks for pointing it out. I've removed the comment in question.