The Minnesota legislature has voted to put a new amendment to the state constitution on the ballot for next fall. It would define marriage as the legal union between a man and a woman and not recognize same-sex marriages.
Even though the state already has a law defining legally recognized marriage, proponents still want the amendment. Why?
Conservatives, who hold the majority in both houses of the state legislature, maintain that a statute (a law passed by the legislature) is vulnerable to judicial review and may be declared unconstitutional. In contrast, an amendment is a permanent addition to the constitution but cannot be reviewed and struck-down by any court.
Is this a wise idea?
Putting aside the obvious point that we already have such a law on the books, the main concern voiced by proponents is this idea of preventing judicial review. For years, conservatives have complained about “activist courts” that are outside the control of voters and, on their own, “legislate” laws that the majority of voters, expressed through their elected officials, don’t agree with.
This may apply at the federal level where federal judges are not elected, are appointed in highly political settings by the president, and serve for life.
But in the state of Minnesota, we elect our judges who serve six-year terms. To say they are beyond the power of the electorate to change, is not true. I see a number of problems with the proposed constitutional amendment.
1. If it passes, it remains attached to the constitution forever unless repealed which is an even more difficult task that the initial passing. Through-out our history, we have had reason to change amendments such as prohibition. However, repeal is rare. For some people, this is good since in spite of the shifting political winds, the law will remain. The problem is that the shifting political winds usually express the desires of the majority. The benefit of a democratically elected legislature is to ensure we have flexibility to respond to changing circumstances. An amendment prevents this.
2. We don’t need it. The law in Minnesota already defines what a legally recognized marriage is.
3. The fear of judicial review is in itself a false fear. Conservatives are the ones usually complaining about this–unless the review and interference tips in their direction. Remember the presidential election between Bush and Gore. The ballot question was strictly a state issue, involving Florida’s ballot laws. The U.S. Supreme Court decided to interfere and made a ruling. This is a perfect example of an “activist court.” We all accepted the ruling because we wanted someone to declare a winner and end the race. Since Bush won, I didn’t hear any conservatives complaining about the “activist court.”
What’s your position? Do you fear the courts will interfere in the present law unless Minnesota voters pass a new amendment?