Minnesota Appeals Court Revives Same-Sex Marriage Lawsuit

The Court of Appeals of Minnesota ruled on January 23, 2012, that Hennepin County District Judge Mary Dufresne erred in dismissing outright a lawsuit by three same-sex couples seeking marriage licenses.  Finding that the trial judge had inappropriately relied on a 1971 Minnesota Supreme Court decision, Baker v. Nelson, the court of appeals sent the case back to the trial court for a determination whether the denial of marriage licenses violates the Minnesota Constitution's due process, equal protection, and freedom of association requirements.

Writing for the unanimous three-judge panel, Judge Renee L. Worke pointed out that the 1971 ruling in a case brought by a male same-sex couple seeking a marriage license was based entirely on the federal constitution, and that the opinion issued by the state supreme court in that case (which was denied review by the U.S. Supreme Court on the ground that it presented no "substantial" federal constitutional question) did not undertake any analysis of the same-sex marriage claim under the state constitution.

This is a significant factor, because, said the court, Minnesota courts have construed their state constitution to place a more significant burden of justification on the state when it adopts policies that raise due process and equal protection issues.  Thus, Judge Dufresne's reliance on Baker v. Nelson, without engaging in an "independent" analysis of the state constitutional claims, was erroneous.  Furthermore, Judge Worke observed, federal constitutional law has moved on since 1971, and the U.S. Supreme Court's 1996 ruling in Romer v. Evans might require a different analysis of a federal equal protection claim concerning same-sex marriage.

The court did grant a motion by the state to be dismissed as a defendant in the case, on the ground that only the county official charged with issuing marriage licenses, Hennepin County Local Registrar Jiill Alverson, who had actually denied the marriage licenses, was an appropriate defendant.  The court also approved Judge Dufresne's dismissal of a religious freedom claim asserted by the couples, one of whom who had enjoyed a church wedding that is not recognized by the state because of its Defense of Marriage Act.  The court, engaging in a bit of sophistical reasoning, concluded that "there is no evidence that the state's failure to recognize same-sex marriages interferes with the appellants engaging in a religious marital ceremony."  This seems to miss the point of their claim.

The court also rejected the argument that Minnesota's DOMA, which was enacted as part of an omnibus family law statute, violated the state's "single subject" rule, finding that the rule has been so loosely applied that as long as all the constituent parts of the statute had some general relationship to the legal status of families, there was no violation.

However, the court was clear in ruling that the plaintiffs in this case are entitled to place the burden of justifying the exclusion from same-sex marriage on the state.  Although the court was not ready to hold that same-sex couples are necessarily being denied a fundamental right on the basis of a suspect classification, nonetheless it pointed out that Minnesota courts apply a more stringent version of the "rational basis" test that must be met by all legislation than does the U.S. Supreme Court under the federal constitution.

"Appellants claim that the government cannot deprive them of their fundamental right to marry without showing that this denial is narrowly tailored to serve a compelling state interest," wrote Judge Worke.  "But even if the right to marry is not considered a fundamental right, appellants should have been granted an opportunity to show that MN DOMA is not a reasonable means to its stated objective — to promote opposite-sex marriages to encourage procreation.  The district court failed to conduct an appropriate analysis under the Minnesota Constitution; therefore, appellants' due-process claim on a rule-12 motion was improperly dismissed."

Worke wrote similarly regarding the equal protection and freedom of association claims.  (The freedom of association claim was specifically asserted also on behalf of a child being raised by one of the couples.)  The court pointed out that the main difference between Minnesota equal protection and federal equal protection in a "rational basis" case is that "under the Minnesota test we have been unwilling to hypothesize a rational basis to justify a classification, as the more deferential federal standard requires."  Instead, the state has the burden of putting forth a defensible justification for the law, and the trial judge was wrong to assume that the result in Baker under the federal constitution should control in this case. 

On the association claim, the court of appeals pointed out that the state supreme court in Baker failed even to discuss a federal right of association claim that had been asserted in that case, providing no basis for Judge Dufresne to assume that an associational decision under the Minnesota Constitution in favor of the plaintiffs would be contrary to the Baker ruling.

"The district court failed to address appellants' challenges under the Minnesota Constitution," concluded Judge Worke.  "A proper analysis is necessary especially because the Minnesota rational-basis test for determining whether equal-protection rights have been violated is more stringent than the federal test."  Noting that in Baker itself the Minnesota Supreme Court had said that there was no guidance from the U.S. Supreme Court "regarding whether the right to marry is a fundamental right of all persons and whether restricting marriage based solely on sex is 'irrational and invidiously discriminatory,'" the court observed that "since Baker was decided in 1971, the United States Supreme Court has issued decisions providing guidance on these issues," and singling out Romer v. Evans, which struck down a Colorado anti-gay constitutional amendment on equal protection grounds, as an example. 

Clearly, in the opinion of the Minnesota Court of Appeals, there is a serious question under Minnesota constitutional law whether the state's Defense of Marriage Act is constitutional.  Although the court does not cite or discuss the various recent federal rulings casting doubt on Section 3 of the federal Defense of Marriage Act or the Prop 8 trial court ruling from California, these hover in the background as rejections of denial of marriage rights to same sex couples, as momentum has built in the courts. 

This case was not brought by any of the national LGBT groups, but rather was originated by three couples in Minneapolis represented by a local attorney, Peter J. Nickitas.  It did attract amicus attention from some of the usual suspects, including the anti-gay Alliance Defense Fund and the Minnesota Catholic Conference, which filed a brief representing also the views also of associations of Evangelicals and Hassidic Jews.  The case also attracted an amicus brief from Minnesota Atheists in support of the plaintiffs.

The other two judges on the unanimous panel were Terri Stoneburner and Jill Flaskamp Halbrooks.  Since the state is no longer a defendant in the case, the decision whether to try to appeal this interlocutory ruling to the Minnesota Supreme Court rather than to go back to the district court for discovery and trial falls to the county attorney, Michael O. Freeman, representing Registrar Alverson.