When will gay marriage be legal in Minnesota?
UPDATE: The U.S. Supreme Court voted in favor of same-sex marriage across the country on June 26, 2015.
Governor Mark Dayton signed same-sex marriage into law on May 14, 2014. The first same-sex couples to legally wed in Minnesota celebrated their unions at Minneapolis City Hall at midnight on August 1, 2013, with then- Mayor R.T. Rybak officiating the wedding for Cathy ten Broeke and Margaret Miles before dozens more couples joined together throughout the night.
Three weeks after the election, John Marty is moving. A slight, silver-haired senator from Roseville, Marty was cast out of his Capitol office in 2010, along with his DFL brethren, when the Republicans took control of the Legislature. Asked if it's nice to be back, Marty shrugs it off as a mere formality, save for the picturesque view of St. Paul.
"I spend a lot of time gazing out the window," he says with a smirk, as his staff files in with more boxes.
Marty produces an artifact excavated during the move: a double-sided sign from the GOP's early-2000s push for a constitutional ban on gay marriage, led by then-state Sen. Michele Bachmann. In its original form, the sign featured images of a man and a woman, ordered to say: "Man + Woman = Marriage." But Marty changed the math by cutting out one of the figures with an Exacto knife and flipping it around. Now, on one side, it says, "Man + Man = Marriage" and on the other, "Woman + Woman = Marriage."
"Their proposal 10 years ago, the chant was, 'Let us vote, let us vote,'" he recalls. "My feeling is: Human rights is not something you put up to a vote."
Nine years later, on November 6, 2012, that vote finally took place. After a long and ugly campaign, Minnesota became the first state in the nation to vote down a referendum to ban gay marriage.
Now, as the legislative session approaches, Democrats face a difficult decision: What's next?
For Marty, who first introduced a bill to legalize gay marriage in 2008, the answer is simple.
"I'm dropping a marriage equality bill again," he says. "I think we've waited far too long, and saying we should wait longer is not okay."
In Minnesota, the debate over the legalization of same-sex marriage has been more than 42 years in the making.
The going has been slow and repetitive. This past election wasn't even the first to include a campaign with the slogan "Vote No." That also happened in 1992, when veteran St. Paul cop Bob Fletcher led a doomed push to repeal the gay-rights provision of St. Paul's human rights ordinance.
But through these long and arduous years, one thing has remained constant: Minnesota is moving toward equality.
Like Marty, many pro-gay-marriage politicians, activists, and voters believe this is the closest the planets have ever aligned for a push to legalize marriage equality. For the first time in more than two decades, the DFL controls the House, Senate, and governor's office. Possibly the largest grassroots campaign ever assembled in Minnesota — more than 27,000 volunteers who worked on the Minnesotans United for All Families campaign — is ready to move. And the night Minnesota voted down an amendment to ban gay marriage, three other states voted to legalize it, while Wisconsin elected the nation's first-ever openly gay U.S. senator.
"I think in this election cycle, we saw the shifting of tides," says Aaron Klemz, a liberal blogger who has assembled a petition with more than 4,400 signatures to legalize same-sex marriage. "Now is the moment where we might be able to push and see a change."
But as history has proven, the issue of gay rights is complicated in Minnesota. If DFL legislators try to repeal the state's version of the Defense of Marriage Act this session — which begins next week — they could very well be heading for disappointment, says Bill Hillsman, a political strategist who worked on one campaign against the amendment.
"They defeated the constitutional amendment, but they didn't defeat it by much, and it wasn't that easy," says Hillsman. "So to jump right from that to, 'Oh we've got this great momentum, let's try to pass a law' — I don't know if that's the reality."
The problem comes down to simple math. Though the constitutional amendment lost by 5 percent in November, the overwhelming majority of "no" votes came from the metro area. Of Minnesota's 87 counties, 75 actually came out in favor of the amendment.
Now DFL legislators from rural districts are put in a compromising position. If they vote for a controversial law that the majority of their constituents oppose, they could be vulnerable come next election, which is quickly approaching for House members.
"I think people are wanting to move forward, but realistically, the votes probably aren't there," says Rep. Susan Allen, DFL-Minneapolis, who is openly gay.
In talks since the election, there have been mixed feelings among DFL legislators on how to proceed, says Sen. Scott Dibble, DFL-Minneapolis.
"It's fair to say that there are different points of view," says Dibble, also openly gay. "Some think 2013 is best — let's go ahead and do this and show that Minnesota won't fall off the face of the planet as a result."
Others fear that pushing the hot-button social issue will be perceived as a distraction by the public. Heading into the session, Minnesota faces a projected $1.1 billion budget deficit that must be balanced by the end of the spring, or the state will fall into yet another government shutdown, which could have grim political repercussions for Democrats. And even if the majority of the session is spent on fiscal matters, passing gay marriage would inevitably be a grueling process.
"The fact of the matter is, for some period of time when the debate gets under way, it will occupy a lot of space," says Dibble. "I call it the Twins Stadium Effect."
But some DFLers fear that a window will close after 2013. The next session will fall on an election year, when the stakes will be even higher for rural DFL legislators. And if the issue does get tabled, and Republicans win in 2014, it could be years before gay marriage has a chance again.
"This is kind of the tension," says one DFL insider, who would talk only on condition of anonymity. "We want to be team players, but at the same time, we don't want to get screwed in this historic chance to do the right thing."
The beginning of the legal debate over gay marriage can be traced back to a brazen young gay couple living in Minneapolis.
On May 18, 1970, Jack Baker and Mike McConnell, who had recently moved from the suburbs of Oklahoma City, walked into the Hennepin County courthouse and filed for a marriage license. At the time, Minnesota had no law against same-sex marriage. No one had ever tried it before.
When Gerald Nelson, the court clerk working that day, denied the couple a marriage license, Baker and McConnell sued. The case made it all the way to the state Supreme Court, but the justices did not give the argument much merit. The court ruled against the couple in 1971, and the U.S. Supreme Court later dismissed an appeal with a single-sentence ruling.
"That was further indication that the courts were not taking this issue seriously," says Dale Carpenter, a constitutional law professor at the University of Minnesota. "It was very, very far ahead of its time. Decades ahead."
Baker and McConnell may have breathed life into the conversation, but it wasn't one Minnesota was ready to have yet. Instead, the state was still debating whether it was acceptable to discriminate against gay people in the workplace.
In 1973, a poll conducted by Mid-Continent Surveys, Inc. asked Minnesotans: "Should a person be refused a job because he or she is a homosexual?" Across the state, 29 percent of participants answered "yes" or "I don't know." Among responders 65 and older, only 50 percent said "no."
In the Legislature, the most passionate defender of gay rights was Allan Spear, a state senator from Minneapolis. Stocky, bespectacled, and rapidly balding, Spear graduated with an M.A. and Ph.D. from Yale. In addition to politics, he also worked as a history teacher at the University of Minnesota. In the mid-'70s, he became the first legislator in Minnesota to come out as openly gay.
"That in itself is a very courageous step," says Roger Moe, a retired DFL senator who served with Spear. "And then once people watched him in action — watched him as a legislator, watched him as president of the Senate — and you saw this brilliant political leader. He had great judgment, he had great political instincts."
Spear was among the first politicians who pursued same-sex equality as a civil rights issue. A powerful wordsmith, he once outlined his position in a letter to Quaere, the University of Minnesota law school's now-defunct student newspaper.
"There are, of course, differences between the oppression faced by gays and the oppression faced by minorities — just as there are differences between racism and sexism," he wrote. "But all people have an equal right to be accepted on the basis of their individual qualities — not on the basis of race or sex or religion or affectional preference. That is what the struggle for gay civil rights is all about."
Spear's position was considered radical at the time. In 1975, he tirelessly pushed a human rights bill that would outlaw discrimination against gay people on the job and in buying or renting property. The bill brought about an enormous show of support from gay rights activists. At first, the bill seemed to have momentum. But at the request of activists, then-Rep. Arne Carlson — who would go on to be a Republican governor of Minnesota — amended the bill to also include protection for transgender individuals.
"At that time, the idea of including transexuals or transgender was a little further than most of the Legislature wanted to go," recalls Bob Vanasek, another former legislator who worked alongside Spear.
Even though the bill failed, Spear continued to push it in different versions over the years, along with legislation to repeal Minnesota's sodomy and fornication laws. As it stood, it was a jailable offense for two gay men to have consensual sex in the privacy of their home. The sexist laws also deemed it a felony for a woman to cheat on her husband; if a man strayed into infidelity, it was only a misdemeanor.
But throughout the '70s and '80s, the lawmakers and public were not ready for change, and angry letters piled up in Spear's mailbox.
"To me, an indulgent or practicing homosexual and an alcoholic are in the same class," reads one piece of hate mail to Spear from April 1981. "Neither is suffering from a disease. At most, they may be victims of an inherent tendency toward an evil inclination, against which they must fight — or should fight."
With sodomy laws still on the books, the Twin Cities weren't such a welcoming place for gay men. Though Minneapolis was considered progressive in comparison with the rest of the state, its police department was not, and throughout the 1980s, officers raided bathhouses and bookstores, which were common meeting places for gay men. In a single raid, Minneapolis police arrested 100 people.
In 1987, over in St. Paul, police booked two clerks for handing out condoms at movie theaters frequented by gay men, citing a law that prohibited anyone not in the healthcare field from distributing contraceptives. When Spear found out that the Minnesota AIDS Project was also being threatened with arrest, he sent a pointed letter to Minnesota Attorney General Hubert H. Humphrey III.
"The Minneapolis City Attorney and a member of your staff advised the Minnesota AIDS project that distribution of condoms in gay business establishments would be in violation of Minnesota Statutes Section 616.251," he wrote. "This statute, however, was ruled unconstitutional in U.S. District Court by Judge Miles Lord in 1981."
But change was on its way. In 1990, St. Paul passed a human rights ordinance that gave gay people equal rights under the law. Though Minneapolis had years earlier passed a similar law, it was nonetheless a controversial step for St. Paul, sparking a vicious campaign for repeal led by Bob Fletcher, who later became Ramsey County Sheriff. The repeal lost narrowly, by fewer than 5,000 votes.
"That was the start of something relatively big," says political analyst Bill Hillsman. "Because if they couldn't get that done in St. Paul, they were never gonna get it done in Minneapolis."
The culture of the Minneapolis Police Department also began to change around the turn of the decade. Police put an end to the bathhouse raids, and actively tried to hire officers from within the LGBT community, spending the majority of its 1990 advertising budget on that effort. It paid off: Sharon Lubinski, now a U.S. Marshall, became the first openly gay officer in the department in 1993. Many more were to come, including recently appointed Chief Janee Harteau.
The most significant progress came in 1993, when the Legislature took up the human rights bill one more time.
Republican Sen. Dean Johnson was an unlikely supporter. A Lutheran pastor from rural Minnesota, Johnson was first elected to the House in 1978, then to the Senate in 1982. That year, he had climbed the ranks to Senate minority leader. So it was a shock when Johnson made a powerful speech on the Senate floor announcing his support for the bill, and comparing its critics to those faced by Abraham Lincoln. "Members of the Senate, there's a great element of fear," said Johnson. "There's a fear among our constituents. There's fear within the members of the Senate. There's fear within Dean Johnson. But I will tell you that if we pass this and the House passes this, and the governor signs it, it is the right thing to do. Not because we totally understand, but because we want to be a state that does not discriminate against people."
With Johnson's help, the bill passed and went on to be signed by Governor Carlson. Spear and Rep. Karen Clark, another openly gay legislator who pushed the bill in the House, embraced in the Capitol lobby after it passed, according to reports at the time.
"Would anyone question our sexual orientation if we hugged?" said Spear.
The subject of marriage wouldn't enter the debate at the Legislature for another decade, when Michele Bachmann, then a second-term senator from Stillwater, tried to push a bill to put a constitutional ban on the ballot. Bachmann made the issue a centerpiece of her career as a legislator in 2004 after a Massachusetts judge ruled it unconstitutional to limit marriage to heterosexual couples.
"I've never thought of this bill as being a partisan bill," Bachmann told the Senate floor in March 2004, emphasizing the importance of passing it before May 17 — the last day of the session, and the day the judge's order took effect.
"By default, Mr. President [of the Senate], we may have same-sex marriage legalized in our state," she argued. "Not by five million Minnesotans. Rather by one judge imposing their morality and substituting that for five million Minnesotans.... I think it's imperative that we allow the people of the state of Minnesota to have a voice on the fundamental reordering of our society."
At the time, the measure had little chance of passing the DFL Senate, but it did wonders for boosting Bachmann's political profile on a national level, says David Schultz, political analyst and law professor at Hamline University.
"It was clearly a different time than it was now, when fears of same-sex marriage were really starting to get heightened, and public opinion hadn't shifted," says Schultz. "So I think she was really astute in knowing how to use an issue for herself."
The bill failed that year. When it was defeated again in 2006, Republicans blamed Dean Johnson, who had by now hung up his Republican stripes and joined the DFL party. As in 1993, Johnson came out as a defender of gay rights — but this time it cost him. Conservatives targeted Johnson with attack ads during the next campaign, and in November, after 28 years in the Legislature, he failed to win re-election.
In 2011, after taking control of the Legislature, Republicans introduced the bill again. In the final days of the contentious session, activists from both sides of the debate showed up in droves and stormed the Capitol. This time, the bill passed.
"It was a horrible night," recalls Minneapolis Mayor R.T. Rybak. "And yet the next morning, there was this great march that went from downtown to Loring Park. And I could feel people's emotion lifting throughout the whole walk, just thinking, 'Okay, we know how to win elections. Let's just win it.'"
November 6 was a night of uncertainty at the RiverCentre in St. Paul, where Minnesotans United for All Families held its election-night party. Early in the evening, when hundreds of supporters began filing in, spirits were high. People danced, cheered, and celebrated every Democratic win that rolled in from around the country. But by 1 a.m., Minnesota's gay marriage vote was still deadlocked, and it seemed everyone would go home without answers.
"You all should go to bed tonight feeling incredibly, incredibly proud of the work that you've done," said Minnesotans United Director Richard Carlbom to a private room full of volunteers and staff. "You've sparked a conversation in Minnesota that has already gotten 1.3 million people to vote no."
The room erupted with cheers and cat-calls.
"I expect we will not have a result before 2 a.m., so we will have to ask everybody to leave," Carlbom continued, and the crowd let out a collective sigh.
But before he could finish the speech, news came in that the Associated Press had called the race — and Vote No had won. Carlbom let out a shriek that set the room off into ecstasy.
"Tonight, Minnesota proved that love is bigger than government," Carlbom announced moments later to the packed auditorium.
After everyone filed out of the RiverCentre, Carlbom and about 20 others went back to their room at the St. Paul Hotel to celebrate with champagne and wine. Among them was Carlbom's fiance. The group stayed up all night celebrating, and Carlbom was back in front of news cameras by 5:30 a.m.
"It was amazing," says Carlbom. "A week later, we were still walking on cloud nine."
But Carlbom knew his work was not over. After the celebration ended, he was back on the phone, discussing the group's next step with other members of Minnesotans United. Meanwhile, groups Project 515 and Outfront Minnesota were having the same internal discussions. And after a couple of weeks, they had all come to the same conclusion: 2013 is the time to push for gay marriage.
"I think strategically, it's a good time because Minnesotans are in the midst of this conversation right now," says Carlbom. "If we wait, or if we delay it, that conversation over time will start to die down."
In late December, Minnesotans United announced that it would continue lobbying for marriage rights. But at the same time Carlbom made his announcement, Minnesota for Marriage — the primary group that supported the amendment — announced it would also be active this session in the fight to defend marriage as only between a man and woman.
Exactly how the fight will play out remains to be seen, but Carlbom says his group will utilize the troops rallied during the "Vote No" campaign. He's also in closed-door talks with legislators. Sen. Scott Dibble says if a bill does move through the Senate this year, he will be the key author.
But if gay marriage does become legal this year, Carlbom warns, the fight for equality in Minnesota still won't be over.
"Even once the change is made, the work is not done."
Four Decades of Fighting
Legislators Spear, Clark, and Johnson
1970: A Hennepin County clerk denies Jack Baker and Mike McConnell a marriage license.
1971: State Supreme Court rules marriage is the union of a man and a woman in Baker Vs. Nelson, setting the first court precedent against same-sex marriage in Minnesota.
1973: Sen. Nicholas Coleman introduces bill to amend current human rights statute to include the term "homosexuals." It fails.
1974: Sen. Allan Spear becomes the first Minnesota legislator to come out publicly as gay.
1975: Coleman introduces new bill that would protect gays, lesbians, and bisexuals from discrimination in the workplace, but it's voted down after being amended to include transgender people; Minneapolis passes ordinance protecting "affectional preference."
1981: Spear and Rep. Karen Clark, also openly gay, reintroduce human rights bill, but it is voted down again.
1990: St. Paul passes its own human rights ordinance.
1992: A campaign led by veteran St. Paul cop Bob Fletcher tries to repeal the city's gay-rights provision; the effort fails by fewer than 5,000 votes.
1993: With help from Dean Johnson, then a Republican and the Senate minority leader, the Legislature passes the human rights bill.
1997: Minnesota Legislature passes its version of DOMA.
2001: Minnesota repeals sodomy law.
2004: Sen. Michele Bachmann introduces a bill for a ballot vote to constitutionally ban gay marriage after a Massachusetts judge rules gay marriage to be constitutional.
2006: Johnson, now turned DFL, loses election after 28 years in the Legislature after being targeted by Republicans.
2008: Allan Spear dies.
2011: Republican Legislature passes bill for a ballot referendum on amending the constitution to include ban on gay marriage.
2012: Minnesota becomes the first state in the nation to vote down a ballot initiative on gay marriage; Maine, Maryland, and Washington legalize gay marriage; Wisconsin elects first-ever openly gay U.S. senator.
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