Appeals court returns same-sex marriage case to lower court

Three same-sex couples seeking marriage licenses in Hennepin County hailed a rulingMonday by the Minnesota Court of Appeals that revives their challenge to a law barring same-sex couples from marrying.

A three-judge panel ruled that a Hennepin County District Court judge erred in dismissing the couples' claims that their constitutional rights had been violated by not being allowed to marry.

This case is already playing into the intense battle over who should be allowed to marry in this state, as Minnesotans prepare to vote on a constitutional amendment that would define marriage as between one man and one woman.

In 2010, three gay couples tried to obtain marriage licenses in Hennepin County. Registrar Jill Alverson turned them down, citing the state's Defense of Marriage Act, which bars same-sex couples from marrying.

Douglas Benson and Duane Gajewski; Jessica Dykhuis and Lindzi Campbell; and Thomas Trisko and John Rittman filed suit in Hennepin County Court, alleging that Alverson violated their due-process, equal-protection and freedom-of-association rights under the Minnesota Constitution.

But Judge Marry Dufresne dismissed their suit, relying largely on a 1971 Minnesota Supreme Court decision that concluded that a gay couple's challenge to a similar law did not amount to irrational or invidious discrimination.

The couples appealed the decision. On Monday, appeals court judges Terri Stoneburner, Jill Flaskamp Halbrooks and Renee Worke affirmed the parts of Dufresne's decision which held that the state's law does not violate the single-subject provision of the constitution. The panel also upheld the judge's decision to dismiss the state as a defendant.

However the three judges ruled that Dufresne failed to conduct an independent analysis of whether Minnesota's law violated the couple's rights to due process, equal protection and freedom of association and improperly dismissed that part of their lawsuit.

"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," the judges wrote. "But even if the right to marry is not considered a fundamental right, appellants should have been granted an opportunity to show that the [Minnesota Defense of Marriage Act] is not a reasonable means to its stated objective — to promote opposite-sex marriages to encourage procreation."

Benson welcomed the ruling.

"It's a win for us personally, it's a win for same sex couples across the state, it's a win for the constitution [and] for justice. All of that," Benson said. "And yes, we're very pleased, as are the other couples in the case."

Minneapolis attorney Peter Nickitas, who represents the three couples, said they're one step closer to dismantling the state's Defense of Marriage Act, passed in 1997.

"We told the Appeal Court we wanted to ...go back to the district court, do discovery and try the case on the merits of marriage equality and that is exactly what the court of appeals is ordering," he said.

Nickitas said much has changed since the 1971 Minnesota Supreme Court decision that denied the right of a same sex couple to marry. Nickitas said he believes the religious arguments against same sex marriage in that case would not stand today.

Some religious groups disagree. Catholics, Evangelicals and a sect of Hasidic Jews also filed briefs in the case, opposing the couples' right to marry.

Jason Adkins, executive director of the Minnesota Catholic Conference called the appeals court's decision to continue the case "shocking."

"Well, this is exactly the kind of case that's resulted in same sex marriage being imposed in other states, and I think it highlights the need to enact the Minnesota Marriage Protection Amendment next November," Adkins said. "Marriage is going to go on trial now in Hennepin County and Minnesotan citizens are at the mercy of a judge now to maintain our centuries' long definition of marriage."

The legal strategy of same-sex couples to use the courts to seek the right to marry is controversial even among groups that favor marriage for gays and lesbians. Out Front Minnesota, the state's largest group advocating for same sex marriage rights, is not party to the suit and has been putting its energy into defeating the constitutional amendment.

Dale Carpenter, a constitutional law professor at the University of Minnesota who opposes the amendment, said the amendment is the far bigger deal. He said the couples' case is unlikely to work its way through the courts before voters have their say.

"We're really not in any different position today than we were before this decision," Carpenter said. "That's my basic view. Minnesotans still have to confront the question in November whether they want to ban legal protections for same sex couples and families in their constitution."

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