Legal Commentary

Wake Me From This Nightmare

By Dale Carpenter

A lawsuit has now been filed in a Minnesota state court challenging the exclusion of same-sex couples under the state constitution. It makes the usual claims about due process and equal protection, but adds especially adventurous claims based on ?freedom of conscience? and ?association.?  The plaintiffs are sympathetic, including a couple of 36 years who don?t feel they have the time to wait 10 or 20 years for the state legislature to do something to protect their relationship.

This is, however, an especially reckless lawsuit. Close followers of the state courts know that the chances of ultimate success are low. The Minnesota Supreme Court was the first in the country to reject a constitutional right to same-sex marriage in Baker v. Nelson in 1971.  There is no reason to think the court is ready to overrule its decision.

The main gay civil rights groups in Minnesota are not supporting this litigation. Reputable law firms would not take it because they know it would make unfavorable precedent.  The solo practitioner who filed it is unknown as an advocate for gay and lesbian causes (but you can follow him on Twitter!). I had never heard of him before today, but a quick Google search turned up a license suspension in Minnesota and Wisconsin for professional misconduct. Olson & Boies it is not.

Aside from the legal problems, there is potential political damage, especially as this fall?s election arrives. The state legislature recently held its first hearings to recognize SSM and is considering legislation to facilitate end-of-life decisionmaking by domestic partners. Some legislators may use the existence of litigation as an excuse to do nothing. Others will use it to stoke exaggerated fears about black-robed Minnesota tyrants.

One way or another, sooner or later, this case will go away. The only question is how much damage it will inflict between this day and that one.

Full post as published by The Volokh Conspiracy on May 11, 2010 (boomark / email).