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Doug Benson and Duane Gajewski are marriage junkies. Like many gay couples, they have multiple anniversaries. Since they met in the 1990s—Doug was vacuuming at the DFL office in Duluth where he worked and Duane mistook him for a janitor—they have attempted marriage five times. In 1993 the couple was rejected for a marriage license in St. Louis County. In 2000 they traveled to Vermont for a civil union. Three years later they went to Thunder Bay, Canada, for a quaint, legal ceremony. Their last stop was in 2004 in San Francisco after Mayor Gavin Newsom issued a directive to the city clerk to issue marriage licenses to same-sex couples, claiming that the California Constitution's equal-protection clause gave him authority to do so.
For the first time, the couple had a marriage recognized, albeit temporarily, by some form of the American government.
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"That was the best Valentine's Day ever," says Benson, 54, his smile peeking out from a thick brown beard.
The two waited 24 hours in line to exchange vows that February, and gave each other San Francisco tourist trinkets instead of rings. "We're not jewelry people," jokes Gajewski, 44, talking during a break from his actuarial job. "When we went through the ceremony, the officiate actually said, 'With this thing, I thee wed.'"
Today, the Robbsinsdale couple is hoping for a sixth marriage attempt right here in Minnesota. To them, marriage rights aren't about walking down an aisle in the church—there are a host of benefits, including tax breaks and end-of-life issues that are only legally protected by marriage.
"I have a resentment of having paid taxes in this state all my working life, being a citizen involved in my community, and then being discriminated against by the very government that we support," says Benson, who started the Northland Gay Men's Center in Duluth, a chemical-free meeting place for homosexuals. "We're being denied equal protection of the law, and that's not just a phrase from the Constitution—that comes with real ramifications."
For months Benson and Gajewski have been working with the Minneapolis-based law firm Mansfield, Tanick and Cohen to file a class-action lawsuit against the state of Minnesota, arguing that its current ban on same-sex marriage is unconstitutional. They formed the nonprofit Marry Me Minnesota in an attempt to raise the $30,000 they need to go forward, and hope to file after the New Year.
The firm, notable for its work in overturning the state's concealed-carry law, plans to employ the same arguments that were used in Massachusetts and California to allow same-sex marriage—specifically, relying on the constitutionally recognized rights of due process and equal protection.
"There's never a good time to suppress freedom and liberty," says Marshall H. Tanick, who is overseeing the case. "Expanding rights doesn't just benefit some, everybody benefits from having broader rights. This is a case about freedom and the extension of the Constitution. The beneficiaries of this case won't just be gay and lesbian people. We think the beneficiaries will be everybody."
Not everyone shares his enthusiasm. With only 10 gay and lesbian couples on board, thousands more oppose the action. Out Front Minnesota, a nonprofit geared toward promoting equality among the state's GLBT population, has publicly come out in opposition to the suit. When rumors spread about the pending action, Out Front and other local GLBT organizations jointly issued a press statement arguing that to file now would be a mistake. Doing so "poses a significant risk to marriage equality," they opined.
Phil Duran has spent the last eight years as a staff attorney for Out Front Minnesota. To him, all of this amounts to an enormous problem of precedent. "In virtually no other state do you have the situation that we have in Minnesota, where you would in essence be asking the Supreme Court to reverse course," he says.
The Minnesota Supreme Court was the first to prohibit gay marriage in 1971 in the case of Baker v. Nelson. The state Legislature later codified the ruling in 1977, and the decision was reinforced in 1997 with the Defense of Marriage Act, which clarified that "lawful marriage may be contracted only between persons of the opposite sex" and went on to specifically prohibit "marriage between persons of the same sex."
While it is true that in the last decade some states have been moving toward marriage equality, the bulk of the decisions that have been litigated have in essence agreed with Minnesota's approach, Duran adds. Marriage equality is not friendly terrain legally in Minnesota, and if a lawsuit is unsuccessful, there will be just one more obstacle for future activists to overcome.
"We would just assume the Baker decision would just grow old and wither away over time, as opposed to it being reaffirmed today and breathe new life into it," says Duran, who calls himself an "activist gay-rights lawyer."
Duran says that Out Front's position is justified but acknowledges it is deeply frustrating for him and others. "Why would I not want to support a lawsuit by well-intended people, particularly when the arguments are ones that in my heart I agree with? It's totally a matter of strategy and particularly a matter of timing."
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