Amendment could reach far beyond marriage

03/27/2006

A variety of rights for couples, gay or straight, are in doubt

BY TOM WEBB
Pioneer Press

It won’t ban gay marriage, because that’s already banned. But a marriage amendment to the Minnesota Constitution could change some other things, legal experts believe.

The amendment’s broad language will open the door for legal challenges to the benefits and arrangements that unmarried couples — gay and straight — use for themselves and their families, experts say.

“It’s not simply outlawing same-sex marriage; it does more than that,” said Beverly Bales, a law professor at the University of Minnesota.

Health care coverage for unmarried partners could be challenged, especially at state-funded institutions like the U. Minneapolis’ domestic-partnership registry might not survive. Even legal contracts between unmarried partners might face challenges, some scholars say, affecting health care directives, insurance claims and financial arrangements — although others dismiss that concern.

But mostly, legal experts in Minnesota are hard-pressed to say what the reach of the amendment would be, because its language is broad and the courts haven’t yet addressed the specifics.

“This is uncharted and unclear water,” said Eileen A. Scallen, a law professor at William Mitchell College of Law.

“There are always questions that are going to end up before judges,” added University of St. Thomas law professor Teresa Collett. “The question is what kind of guidance are the judges going to have when making their decision, and what level of authority will that guidance have?”

The wording of the amendment contains two sections that legal experts find especially thorny. One part would outlaw gay marriage “or its legal equivalent.” Scholars agree this clearly seems to ban civil unions like those in Vermont, but no one is sure what else it might cover.

“It definitely gives (gay-rights critics) an opening because of this additional language,” said Dale Carpenter, a constitutional law professor at the University of Minnesota. The argument they’ll use, he said, is: “You’re treating (unmarried partners) just like you’d treat married people, and you can’t do that under this amendment.”
Carpenter sees it otherwise.

“I would argue that simply granting health benefits to domestic partners is nowhere near recognizing a legal equivalent,” he said. “But what this amendment is going to do is create a cloud of legal uncertainty over providing rights for same-sex couples.”

The other murky element about the amendment is whom it covers. The House version seems to limit its reach to government, by applying it to “the state or any of its political subdivisions.”

But one Senate version contains no such limiting language. That would throw into doubt domestic-partner benefits now offered by private employers, including Best Buy, Medtronic, Northwest Airlines, Target Corp., Cargill, UnitedHealth Group, St. Paul Travelers, U.S. Bancorp, Xcel Energy and General Mills.

“There are serious questions about whether private corporations could legally offer domestic-partner benefits,” Scallen said. “It’s questionable in my mind whether insurance companies would offer to insure domestic partners, when those are illegal under the state Constitution.”

Collett, the St. Thomas professor, thinks such benefits would remain legal, but she agrees companies would be officially discouraged by “not allowing them to take tax advantages, not recognizing them in a regulatory way.”

If companies still wanted to preserve such benefits, she said, “I would urge them to go to a cafeteria plan. Then I think you’ve got no argument at all.”

Inquiries to legal scholars at the four Twin Cities law schools produced some consensus on the effects of the marriage amendment, but there were also big differences of opinion.

Hamline law professor Mary Jane Morrison thinks the amendment’s most sweeping effects would be limited by a 1996 U.S. Supreme Court decision. There, the court threw out an anti-gay-rights amendment passed four years earlier by Colorado voters.

In that case, Justice Anthony Kennedy wrote that Colorado “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws.”

Said Morrison, “Insofar as any of these marriage amendments are designed to do the same thing, they would run into the same sort of invalidity.’’

Anthony Winer, constitutional law professor at William Mitchell, sees a broader impact.

“This amounts to a constitutional declaration of inequality,” Winer said. “You have the state Constitution, declaring in its text, that for one very significant purpose, namely marriage, that gay people are less than straight people. I think that has huge implications apart from the marriage context.”

Among them, Winer said: adoption rights, partnership benefits and employment discrimination.

If the amendment passes, the U’s Carpenter wonders how disputed issues involving domestic partners would be handled by state courts. How would the courts handle a separated lesbian couple fighting over child support?

“The court might be in a position of having to recognize the same-sex relationship in order to grant relief,” he said. “And this amendment prohibits the state from doing so, because the courts are part of the state.”

Scallen wonders about contracts between unmarried couples that cover insurance, health care and other private matters.

“The law does prohibit people from entering into illegal contracts,” Scallen notes. So if a state court upheld such a contract, she asks, “Isn’t the law enforcing a quasi-marital relationship?”

However, Collett says the courts have recognized contracts between unmarried partners and that wouldn’t change.

“The law has rejected that argument where we’re dealing with heterosexual cohabitating couples, so I would be surprised if our courts answered differently if they’re dealing with homosexual couples,’’ she said.