Law Professor: Marriage Amendment is Divisive and Mean-Spirited

There have been a number of excellent op-eds and commentaries published recently about the proposed marriage amendment to the Minnesota Constitution. I've shared some of these at the Wild Reed (see, for instance, here, here, and here). Also worth checking out is the recent Star Tribune editorial, "Don't Put Bigotry Up for a Vote," the latest editorial in the Winona Daily News, and the open letter signed by over 60 law professors from the University of Minnesota and in which it's stated that the amendment "does not help existing marriages" and is "a wasteful and harmful diversion away from the state's immediate need to focus on many other pressing problems."

One of the law professors who signed this open letter was Richard W. Painter (left), who had an excellent commentary in yesterday's Star Tribune entitled "Marriage Amendment? Leave Marriage Well Enough Alone." Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School, and former associate counsel to the president and chief White House ethics lawyer under George W. Bush.

Following are highlights from Painter's commentary.

The Minnesota Legislature should reject a measure that would put on the 2012 ballot an amendment to the state Constitution that needlessly restates existing law on marriage.

Minnesota marriage laws have been well-settled for a long time. Marriages must be between a man and a woman. There is no indication that state courts will wade into this area and legislate from the bench, and there is very little chance that the Minnesota Supreme Court would allow them to do so.

Enshrining statutory provisions in our Constitution sends a message that we do not trust our judges to faithfully apply statutes. Minnesota judges, like judges in the vast majority of states, have left our marriage laws intact.

Furthermore, the proposed amendment would force Minnesotans to engage in a divisive debate over a ballot measure. That debate would be particularly damaging for Republicans, who are divided on this issue.

. . . Elevating statutes to the Constitution also ties the hands of future legislatures and future generations of voters who will elect those legislatures. Future changes could not be made without the expense and public rancor of ballot measures.

Once we do this with marriage laws, advocates on both sides of other issues will use constitutional amendments to promote their agendas.

Minnesota is not a state that governs itself largely through ballot measures, and most of us want it to stay that way.

. . . Finally, this ballot measure is mean-spirited. Without any need whatsoever, it sends a message to gays and lesbians that they are not welcome to live in our state with rights bestowed on the rest of us.

Existing marriage law, of course, makes a distinction that many gays and lesbians feel is unjust. But our refusal to change existing law does not send anywhere near so negative a message as would our elevating a single definition of marriage to our Constitution.

Kicking people when they are down is not the "Minnesota Nice" that we want to project to the rest of the world.

To read Richard W. Painter's commentary in its entirety, click here.


See also the previous Wild Reed posts:
Catholic Attitudes on Gay and Lesbian Issues: An Overview
Tips on Speaking as a Catholic in Support of Marriage Equality
Winona Daily News Calls Proposed Marriage Amendment "Bigoted" and "Malicious"
Rep. Steve Simon on Gay Marriage and the Arc of History
Disappointing, But Not Unexpected: "Marriage Amendment" Bill Passes MN Senate Judiciary Committee
Governor Mark Dayton to LGBT Advocates: "I Stand with You"
A Celebration of Faith and Family; A Call for Compassion and Fairness
Quote of the Day – November 4, 2010
A Message for NOM (and the Catholic Hierarchy
Minnesotans Rally for Equality and Love
Responding to Bishop Tobin's Remarks on Gay Marriage
Archbishop Nienstedt Calls (Again) for a Marriage Amendment to Minnesota's Constitution
A Catholic Statement of Support for Same-Sex Marriage

Recommended Off-site Links:
Most U.S. Catholics Back Civil Marriage for Gays – Lou Chibbaro Jr. (The Washington Blade, March 31, 2011).
Catholics More Supportive of Gay Rights Than General Public, Other Christians – Michael Sean Winters (National Catholic Reporter, March 22, 2011 – via The Progressive Catholic Voice).
U.S. Catholics Break with Church Hierarchy on Gay Relationships – Cathy Lynn Grossman (USA Today, March 23, 2011).
Banning Gay Marriage Would Institutionalize Injustice – Gary Boelhower (Duluth News Tribune, May 1, 2011).