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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Marriage, Equality, and the Minnesota Constitution

A proposed constitutional amendment that would define marriage as “between one man and one woman” would not address problems facing Minnesota families and would be bad for the state’s business climate, argue the authors.  Moreover, the proposed amendment erodes the ideal that a constitution exists to protect the rights of all.

In November 2012, Minnesota will become the 31st state to ask its voters whether or not to amend its state constitution to add language defining marriage as “between one man and one woman.” While its proponents hail the amendment as a way to save the institution of marriage, the Minnesota State Bar Association has recognized the amendment question doesn’t address the problems that currently plague Minnesota families, but instead, only serves to further the inequalities and discrimination that Minnesota’s same-sex couples and their families endure. Additionally, in opposing the marriage amendment, the Minnesota State Bar Association recognizes that further marginalization against gays and lesbians in Minnesota is simply bad for business.

Not surprisingly, numerous Minnesota lawyers have gathered together to form Lawyers for All Families, an off-shoot of Minnesotans United for All Families, the official campaign to the defeat the amendment. Minnesotans United for All Families is a coalition of organizations and community and business leaders. Faith, labor, progressive, and nonpartisan organizations, communities of color, current and former elected officials, Republicans, Democrats, Greens, Independents, and Libertarians have all joined to defeat the constitutional amendment which would limit the freedoms of Minnesotans and ban marriage for same-sex couples in
Minnesota.

Support for Marriage Equality

The Minnesota State Bar Association has a strong history of not only opposing attempts to limit the rights of gays and lesbians to marry in Minnesota, but the MSBA actively supports marriage equality. For example, in 2004, the MSBA approved a resolution urging the Minnesota Legislature to reject a proposed state constitutional amendment that would have prohibited all forms of legal recognition for same-sex couples, including marriage.1 This resolution, while remaining silent on recognizing marriage for same-sex couples, sent a clear message to the legislature: the Minnesota State Bar Association does not approve of discriminatory ballot measures.

Furthermore, in April 2008, the MSBA Assembly unanimously approved the creation of the Task Force on the Rights of Unmarried Couples. Specifically, the Assembly’s charge to the task force was as follows:

That, in light of the disparity between legal rights and protections available to same-sex couples as compared to different-sex couples, the President of the Minnesota State Bar Association create a task force to review the current state of Minnesota law and to make recommendations as to desirable changes, if any, in the law to address this disparity.2

The task force ultimately decided that the only way to afford same-sex couples in Minnesota the same legal rights and obligations as their heterosexual counterparts was to allow same-sex couples to get married. However, the task force stated that until marriage equality is a reality in Minnesota, the 515 laws in Minnesota that discriminate against same-sex couples can and should be changed. The final report, a 66-page mammoth undertaking with 36 coauthors, outlined the myriad of ways in which the law treats heterosexual couples differently than same-sex couples and the ways to remedy that discrimination.

Finally, and most dramatically, the MSBA passed a resolution urging our legislature to not only defeat any anti-marriage amendment, but it passed a resolution urging the legislature to support marriage equality.3 Specifically, the Assembly of the MSBA supported a resolution stating, “That the Minnesota State Bar Association urges the Minnesota Legislature to permit same-sex couples access to civil marriage, with all its attendant legal rights and responsibilities, while preserving the constitutional freedom of religious institutions and their personnel to participate in or support, or refrain from participating in or supporting, civil marriages.” This statement is unequivocal; the Minnesota State Bar Association supports full equality for Minnesota’s gay and lesbian couples.

The MSBA is in good company. Thirty-one law firms and counting, along with numerous  prominent lawyers have taken a stand against the amendment. Nilan Johnson Lewis, PA, Lockridge, Grindal, Nauen PLLP, Robins Kaplan Miller and Ciresi, LLP, and Oppenheimer, Wolff and Donnelly, LLP, prominent Minneapolis-based law firms, have publically announced opposition to the amendment. Charlie Nauen, Lockridge Grindal Nauen partner, said, “Defeating the marriage amendment is a matter of social justice and fairness for all Minnesotans.”

Amendment Misses the Mark

The amendment proponents claim changing our state constitution to define marriage as between one man and one woman is needed to save the institution of marriage, which includes supporting opposite-sex relationships and ensuring that children are not raised by unwed parents. However, the proposed amendment question—if passed—will do nothing to support opposite-sex relations or ensure children are raised by married parents. The amendment—if passed—will do the exact opposite; gay and lesbian couples in Minnesota will continue to be discriminated against with no benefit to their heterosexual counterparts and the thousands of Minnesota kids being raised by two moms or two dads will continue to live in a society where their parents can’t get married (not to mention banning gay marriage will continue to do nothing to support children being raised by one parent).

University of Minnesota Law Professor Dale Carpenter captured this sentiment the best. When addressing the concerns of some people who ardently oppose gay marriage, he noted that they worry

about fathers avoiding parental responsibility, about the unfairness and poverty of single parenthood, and about high divorce rates. Highlighting these problems would make sense if one were proposing, say, to abolish divorce, which affirms that some values are more important than keeping people married at all costs. Banning gay marriage addresses none of them.4

Prof. Carpenter underscores exactly how the amendment does nothing to address the concerns of many heterosexual-marriage-only supporters by stating that they have “identified longstanding problems in heterosexual families that were not caused by gay families and ha[ve] proposed to alleviate them at the expense of gay families.”

Additionally, even assuming the amendment is defeated, gay and lesbian couples will continue to be discriminated against by Minnesota law. As mentioned previously, the Minnesota State Bar Association’s Task Force for Unmarried Couples, as well as a report commissioned by Project 515,5 a legislative advocacy organization dedicated to ending the discrimination found in Minnesota law, delved deeply into how our state laws impact gay and lesbian couples. Their results showed there is a vast breadth and depth to the discrimination that happens: Gay and lesbian couples can be and are discriminated against in very profound ways as well as extraordinarily mundane ways.

Laws that confer a benefit to heterosexual couples but deny the same to same-sex couples can impact the lives of those couples when they need government to support them the most. For example, Tim Reardon’s partner, Eric, died of a brain tumor in 2007. As prudent planners, Tim and Eric thought they had in place all the legal documentation needed while Eric was in hospice. Tim didn’t learn they weren’t fully protected until after Eric passed. Even though Tim showed administrators a power-of-attorney document, a health-care directive, and Eric’s will all clearly naming Tim as the decision-maker, it turned out that Eric’s Health Care Directive wasn’t complete. A required separate initial-box had been missed. In the absence of that initialed box, decision-making authority defaults to the legal next of kin, which would first be the spouse. Without legal recognition as his partner, Tim could not be Eric’s spouse. Thus only with the consent of Eric’s mother and father was Tim ultimately allowed to sign the cremation society paperwork.

“For three years I’d cared for Eric as his health deteriorated and he became increasingly dependent on me for attention to even his most basic bodily functions, and yet after his death they had the audacity to question our relationship,” recalled Tim. “I felt so violated and angry that they would not acknowledge our relationship.” Any legally married spouse is automatically recognized as next of kin and is granted the right to make cremation-related decisions with no papers, no lawyers, and no need to prove their relationship at life’s most vulnerable moments6—the law protects them from such insult.

Unlike such laws that broadly affect all same-sex couples, some of Minnesota’s laws discriminate in ways that may impact only a few. In Minnesota, a farmer can slaughter animals only for his or her immediate family without a food handler’s license.7 Thus, if a farmer wanted to slaughter and serve chicken to his or her same-sex partner, that farmer would either need a food hander’s license or that farmer would be breaking the law.

Business Case for Inclusiveness

Minnesota has fared well in attracting and retaining well-educated, innovative workers. The state’s workforce has been the foundation of a dynamic economy, and often is cited by policymakers, economists, and employers as one of the state’s greatest competitive tools. In today’s rapidly changing global marketplace, though, competition for the best and brightest workers will grow increasingly intense. Demographers have pointed out that the rate of growth in Minnesota’s work force is slowing dramatically as the state’s population ages. Well-educated young lawyers and workers have been attracted to Minnesota because of the area’s lively cultural and entertainment offerings, according to highly regarded research.

In spite of its success to date, though, there are bright red flags of warning for Minnesota.  According to a respected, multiyear study, fewer than two in ten people say the Twin Cities is a good place for young, talented college graduates looking for work, in part because of a perceived lack of openness to differences in race and sexual orientation.8

While many of Minnesota’s law firms and corporate employers have been among the country’s leaders in creating diverse workplaces, some firms and corporate leaders are sounding the alarm over the impact on recruitment and retention expected to result from the proposed constitutional amendment to deny marriage equality. Most recently, General Mills announced its opposition to the amendment measure. In a blog post, Ken Charles, the Vice President of Global Diversity and Inclusion at General Mills commented, “We do not believe the proposed constitutional amendment is in the best interests of our employees or our state economy—and as a Minnesota-based company we
oppose it.”

Minnesota gains its competitive advantage not by being the 31st state to deny marriage equality, but by leading the movement to create an open, welcoming environment. The competitive steps taken by employers throughout the country are telling. As The Economist pointed out in a February 2012 article:

Companies are competing with each other to produce the most imaginative gay-friendly policies. American Express has an internal “pride network” with more than 1,000 members. Cisco gives gay workers a bonus to make up for an anomaly in the American tax code. (If you are married, the cost of various insurance premiums is deducted from your pre-tax income, but if you are merely a partner it is deducted from your post-tax income.) Some companies vocally support gay marriage. In the past fortnight Lloyd Blankfein, the boss of Goldman Sachs, has accepted an invitation from HRC (Human Rights Campaign) to become its first corporate spokesman for gay nuptials, and seven big companies, including Microsoft and Nike, have written to Congress to support the idea.9

Our Greatest Asset—People

One of the few articles of political faith that crosses ideological boundaries is the conviction that Minnesota’s greatest economic strength is our workforce. Listen to Minnesota politicians talk about economic growth—regardless of whether they are conservative or liberal, metro area or Greater Minnesota—and chances are the diligence and productivity of Minnesota workers will garner prominent mention. Attorneys at law firms, large and small, are no exception.

Maintaining that asset in today’s competitive global marketplace, though, is becoming more and more of a challenge. According to the 2011 Global Metro Monitor published by the Brookings Institution, the growth spotlight is shining brightest on many emerging markets:

“Ninety percent of the fastest-growing metropolitan economies among the 200 largest worldwide were located outside North America and Western Europe. By contrast, 95 percent of the slowest-growing metro economies were in the United States, Western Europe, and earthquake-damaged Japan,” according to the report. The Twin Cities’ economic growth ranked 96th in 2011—an improvement over the preceding period, but still a middle-of-the-pack ranking.10

Slower Growth in Work Force

Minnesota remains a great state in which to live and do business and practice law, but extending Minnesota’s success into the future poses huge challenges. Overall, the state’s workforce, talented or not, will grow at significantly lower rates in the next decades, according to state economist Tom Stinson and state demographer Tom Gillaspy. In a widely praised assessment of Minnesota’s trends, they point out that the labor force will grow by about three-quarters of 1 percent between 2010 and 2015 and by less than one-half of 1 percent between 2015 and 2020.

Meanwhile, say Stinson and Gillaspy, public costs are likely to increase. For example, health care costs, older adult services, infrastructure maintenance, and other public needs will grow, some of them rapidly, driven by an aging population. By 2020, there will be more Minnesotans age 65 and older than school-aged children.11

If Minnesota is to maintain its quality of life during this time of demographic change, it will be essential that the workforce increases productivity and the state continues to attract and retain the talent needed to create new jobs and grow companies in the knowledge industries. It’s important to understand, then, how Minnesota and the state’s businesses can compete successfully for the most talented work force. Certainly, Minnesota fares well on many quality-of-life attributes important to workers.

Facts are Clear

Research increasingly is underscoring the importance of engaging people in their community. That is to say, it’s not enough to have the economic magnets that attract people to a community. Residents’ emotional attachment to a community has a high correlation to an area’s economic success, according to a three-year study of 26 major metro areas in the United States, including the Twin Cities metropolitan area and Duluth.

The “Soul of the Community” study, sponsored by the John S. and James L. Knight Foundation, based its findings on in-depth research conducted by Gallup. Among the findings:

A community’s most attached residents have strong pride in it, a positive outlook on the community’s future, and a sense that it is the perfect place for them. They are less likely to want to leave than residents without this emotional connection. They feel a bond to their community that is stronger than just being happy about where they live.12

“Our theory is that when a community’s residents are highly attached, they will spend more time there, spend more money; they’re more productive and tend to be more entrepreneurial,” (deputy director of the Gallup World Poll Jon) Clifton said. “The study bears out that theory and now provides all community leaders the knowledge they need to make a sustainable impact on their community.”13

More Work to Do

While Twin Cities residents strengthened their attachment to their communities over the three years of the study, there was a troubling finding. The region falls short on the perceived “openness” of the community—a shortcoming that could have adverse economic consequences in years to come. According to the research,

Residents are most likely to say (the Twin Cities) is a good place to live for young adults without children and families with young children, but only about a third say this. No more than one in four residents say (the Twin Cities) is a good place to live for older people, racial and ethnic minorities, gays and lesbians, or immigrants. Fewer than 2 in 10 say it is a good place for young, talented college graduates looking for work. Thus, (the Twin Cities) has much room for improvement on this metric critical not only to attachment but also to attracting the best and brightest to the community.”14

New Dual Regime

Increasingly, employers are trying to navigate different systems and laws that treat their employees differently. In states where same-sex marriage is recognized—for example, New York and Massachusetts, where employers are trying to juggle conflicting federal and state laws—employers are finding it necessary to create “dual regimes” of benefits and tax systems, according to an amicus brief filed last year before the 1st Circuit Court of Appeals:

These dual regimes have spawned an industry of costly compliance specialists. Some amici have had to pay vendors to reprogram benefits and payroll systems, to add coding to reconcile different tax and benefit treatments, to reconfigure at every benefit and coverage level, and to revisit all of these modifications with every change in tax or ERISA laws for potential … impact. Attorneys and ERISA advisors must be consulted. Human resources, benefits, and payroll personnel must be trained and retrained as tax or ERISA laws change. Plan documents, enrollment forms, and administrative procedures must be scoured for the word “spouse,” and amendments and disclosures drafted to try to explain the numerous implications and consequences of a given benefits decision on the personal tax situation of an employee with a same-sex spouse … . The burden on the small employer is especially onerous … . Such burdens, standing alone, might chill a smaller employer from employing an otherwise qualified employee because she happens to be married to a same-sex spouse … .15

The brief also pointed out that the conflict in laws forced employers to invade the privacy of employees and to treat groups of workers differently. The employer “becomes the face of … discriminatory treatment, and is placed in the role of intrusive inquisitor, imputer of taxable income, withholder of benefits. The employer is thus forced … to participate in the injury of its own workforce morale.”16

This “dual regime” approach to employee benefits would be particularly ironic in Minnesota. The state’s employers have been among the national leaders in providing domestic partner benefits. Nearly 300 Minnesota companies—including 70 percent of the state’s Fortune 500 employers—provide benefits to domestic partners.17

An Unnecessary Risk

Wanton discriminatory laws and bad business environments are the legal and economic risk posed by the proposed constitutional amendment to prohibit same-sex marriage. Gay and lesbian couples currently experience profound discrimination based in our state laws; it will help not one Minnesota family to put that discrimination in the state constitution. Additionally, Minnesota’s legal and business community—liberals, conservatives and moderates—are right: The state’s greatest economic asset is the state’s talented workforce. A diverse, educated workforce built the foundation of Minnesota’s prosperity and will be the competitive edge in the global, knowledge-based economy. We can’t afford to put up a “Not Welcome” sign to the innovators who will drive tomorrow’s economic prosperity.


READ MORE
Protecting the Rights of All By David Ahlvers

Tom Horner is a Minnesota public relations consultant and politician. He was a candidate in the 2010 election for Minnesota Governor, running with the endorsement of the Independence Party. A graduate of the University of St. Thomas, in 1972 he worked as press secretary for Republican U.S. Senate candidate and future Senator David Durenberger, serving subsequently as Durenberger’s press secretary and chief of staff. Returning to Minnesota, he cofounded Himle Horner Inc., a public affairs firm, and continues to provide strategic counsel to clients on public relations and public affairs.

Jane Holzer is the Supervising Attorney at the Housing Preservation Project, a nonprofit law firm that promotes affordable and sustainable housing in Minnesota. Holzer received her bachelor’s degree from Macalester College and her J.D. from William Mitchell College of Law. Holzer sits on the Board of Directors of Project 515, a legislative advocacy organization with a mission to eliminate the 515 laws that discriminate against same-sex couples and their families in Minnesota.

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