Minn., Henn. Co. argue over same-sex marriage ban defense

Lawyers for the state of Minnesota and Hennepin County quarreled in court Friday over which one's responsible for defending the state's ban on same-sex marriage against a lawsuit that's moving forward as a statewide vote on the definition of marriage also looms.

Three gay couples have sued to overturn the state law limiting marriage to opposite-sex couples. The defendant is the Hennepin County official who issues marriage licenses, and the state and county each think the other should be responsible for his defense and pay his court costs.

Judge Mary Dufresne has 90 days to decide. A trial isn't possible until she does, so it's extremely unlikely there will be a resolution before Election Day, when Minnesota voters will decide whether the ban already in state law should be strengthened by putting it in the state constitution.

Officials with the group pushing the amendment point to the lawsuit as an example of why it's needed. Having the state constitution define marriage as between a man and a woman, they say, would make it much more difficult for a judge or judicial panel to authorize same-sex marriage in Minnesota.

The amendment "will prevent the Minnesota judiciary from using the (lawsuit) as a vehicle to change the definition of marriage in Minnesota - without a vote from the people," said Autumn Leva, spokeswoman for Minnesota for Marriage. That group, a coalition of religious and social conservative organizations, has compared the Minnesota lawsuit to one in Iowa that resulted in that state's Supreme Court legalizing same-sex marriage there in 2009.

John Rittman, a plaintiff in the lawsuit, dismissed that argument. "They have an agenda," he said. "And it doesn't matter if there's a case before the court or not."

Rittman and his partner of 38 years, Tom Trisko, were legally married in Winnipeg, Manitoba. The other couples involved in the lawsuit also were legally married in municipalities outside of Minnesota and denied marriage licenses from Hennepin County.

While the couples said they weren't influenced by the arguments made by same-sex marriage opponents, the state's gay rights establishment has been reluctant to embrace their lawsuit. There has been worry it would give critics ammunition and that its chances of success were slim, since the Minnesota Supreme Court first ruled against same-sex marriage in 1971 and is now stocked mostly with justices appointed by former Republican Gov. Tim Pawlenty.

"No gay rights organization is supporting this litigation, because they all know it's a loser. It has very little chance of success," said Dale Carpenter, a University of Minnesota law professor and same-sex marriage supporter. Carpenter serves as treasurer to Minnesotans United for All Families, a coalition of gay rights groups trying to defeat the amendment.

Kate Brickman, spokeswoman for the Minnesotans United campaign, said they want voters to defeat the amendment on its own merits "because it would shut down an important conversation that Minnesotans are having about this issue."

If voters approve the amendment in November, Rittman, Trisko and the other couples would likely lose any footing they had in state courts. Their attorney, Peter Nickitas, said if that happens he would move to shift the case to federal court.

Nickitas said the decision on whether same-sex marriage should be legal is better made by a judge than by voters. He pointed out that in the state's early days, an amendment to extend voting rights to non-white males failed twice in statewide votes before it finally passed in 1868.

"Leaving it up to the majority can bring up that tyranny of the majority that the framers of our constitution worried about," Nickitas said. "The majority is not always just."

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