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Supreme Court on gay rights

November 2, 2012
The Journal

To the editor:

On Tuesday, Minnesota voters will decide whether to amend the State Constitution to ban gay marriage. Before casting their ballots, voters may find it instructive to consider what the Supreme Court has already said regarding gay rights. In 1996, the Court held as an unconstitutional denial of equal rights an amendment to Colorado's Constitution barring any local jurisdiction from implementing any policy that would protect sexual orientation from discrimination (Romer v. Evans). The Court said the amendment was born of an "animosity toward the class of persons affected" and a "bare . . . desire to harm a politically unpopular group." In 2005, the Court struck down laws that criminalized homosexual sodomy as a denial of due process, stating that "the fact that a governing majority in a state has viewed a particular practice as immoral is not sufficient reason for upholding the law prohibiting the practice." (Lawrence v. Texas)

If Minnesota voters approve the proposed amendment, it may have a very short shelf life. On October 29, the Supreme Court said it will decide in November whether to hear a case challenging the constitutionality of an amendment to California's Constitution prohibiting same-sex marriage. The lower courts had declared it unconstitutional as a denial of equal rights.

The issue before the courts is not complicated. The proposed Minnesota amendment is clearly discriminatory, as it would deny a right to same-sex couples available to heterosexual couples. The Supreme Court has previously held that marriage is a fundamental civil right (Loving v. Virginia) (1967). Accordingly, denial of marriage to same-sex couples can be upheld by the courts as constitutional only if the state can show a compelling interest in the discriminatory policy. Justifications based on the Bible, sectarian doctrines, custom, general norms of morality and the like, apparently will not suffice. Many may understandably not like the narrow focus of the courts, but the Constitution is a secular document, a product of the not particularly religious Enlightenment. The state recognizes marriage as a social contract, not a sacrament. It is useful to note this, as a good deal of the thrust behind the proposed amendment appears religiously based. So far, the forces mobilized to combat the "homosexual life-style" are batting zero before the courts. Those who believe they can place reliance on the five justices who are Roman Catholic to do the right thing may be in for a surprise, as it was the devoutly Catholic Justice Anthony Kennedy who authored the two Supreme Court decisions upholding the rights of gays.

Bob Dempsey

New Ulm



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