Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, May 9, 2013

Same-Sex Marriage in Minnesota

By Thomas Berg

The Minnesota House passed a same-sex marriage bill today, 75-59.  The predictions are that the Senate will pass the bill (assuming the working out of conforming amendments) on Monday.

For the record, here are two letters that our two groups of religious liberty scholars (including Rick and me in the first group, and Michael Perry and me in the second, pro-same-sex-marriage group) sent to Minnesota legislators arguing for stronger religious liberty provisions.  (The archive of various state letters is here.)  I also gave input arguing for strong religious liberty provisions in MN at earlier times including during the drafting.  In some ways the results are reasonably protective of religious liberty -- partly because the bills incorporate Minnesota's reasonably strong existing exemption from sexual-orientation nondiscrimination laws -- but they also leave some important matters unprotected.

Interestingly, there was a proposed amendment to eliminate the term "marriage" from the statutes and replace it with civil unions for all couples (leaving religions or anyone else free, of course, to perform marriages).  That effort was launched by Republicans, but it got a few DFL (Democratic) votes.  It lost, 111-22.

https://mirrorofjustice.blogs.com/mirrorofjustice/2013/05/same-sex-marriage-in-minnesota.html

Berg, Thomas | Permalink

Comments

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Reference is made on page 6 of the "main letter," e.g., to an area where GLBT are offered various infrastructure and "many" businesses are supportive. Thus, exemptions would not likely cause hardships. Is this the rule applied for other types of exemptions (race, sex etc.) -- not likely to cause hardships?

It is noted that such exemptions might affect not only obtaining wedding photographers (which even Dale Carpenter -- see Volokh Conspiracy -- accepts might raise 1A issues) but things like caterers. But, "mere inconvenience" should not be the test here. Again, is that the test for other types of discrimination? Not serving a person because of race, sex or religion might be based on belief. If there is another shop nearby (though not having exactly what one wants) can we follow that "substantial" burden rule?

The "symbolic harm" of not treating those not served because of their sexual orientation or because their choice of marriage partner is the wrong "sex" also seems to be minimized here. I share sean's comments in a previous thread (connected to Delaware) that different rules for sexual orientation aren't justified. I also share David's curiosity as to how divorce and other "wrongful" marriage conduct is treated differently.

As to the 'civil union' alternative, would all previous marriages provided for by the state also be changed into civil unions, so that the social meaning of the term would be somewhat close to be changed too? A marriage license is a type of civil union by definition. I appreciate the evenhanded nature though given the social understanding (and possible problem with recognition in other states of "civil unions") of "marriage," I would oppose the message sent that protecting same sex couples here requires a new term.