Outgoing Justice Anderson is glad Legislature, not courts, made call on marriage

Outgoing state Supreme Court Justice Paul Anderson said Monday that he's happy the Legislature, and not the courts, decided the same-sex marriage issue in Minnesota.

"Whichever way this issue came down," Anderson said, "I am so glad it was decided across the street from us in the Legislature, because that's where it should have been decided and it should have been resolved."

Anderson was referring to a bill passed by the Legislature and signed into law last week by Gov. Mark Dayton. It allows same-sex couples to be married in Minnesota, starting in August. Anderson made his comments in an interview with Kerri Miller on The Daily Circuit. He is stepping down as an associate justice at the end of May, having reached mandatory retirement age.

"See, what people should understand is that judges decide things. If you bring a tough issue to us, we'll decide. But often we are not the best place to make the decision. When the other branches of government punt, so to speak, and decide not to take on tough issues, then people bring it to the court and we will make the decision. But very often we are not the best place to make the decision."

Anderson said the legislative process is better than the courts at fleshing out the issues. "The public is more involved and the debate is more robust in that context."

"I'll talk about Roe vs. Wade," he said. "I don't think the U.S. Supreme Court got it, very much, on Roe vs. Wade. ... All the court had to do in that decision was to overturn the Texas law and then let the issue flesh out in the public. By the court being so strong ... one side of the debate picked up its marbles and went home." Anderson said the court's sweeping decision "distorted the nature of our political system and our dialogue."

Anderson predicted that the rulings in the same-sex marriage issues currently before the U.S. Supreme Court would reflect caution and a respect for states' rights.

On California's Proposition 8, he noted that a lower court has already found it unconstitutional, and that the groups appealing the ruling do not represent the state of California. He said it was likely the court would find the parties lack standing and reject their appeal on that basis. "The question is, does it go back to the district court or to the circuit court? But if it says, 'We let the circuit court stand, Proposition 8 is out, and the California Supreme Court decision is in place, and gay marriage is in California,' that's a conservative, traditional, non-activist approach by the court."

The federal Defense of Marriage Act (DOMA), he said, is likely to be decided as a states' rights issue.

"This is very much a states' rights court," he said. "My prediction would be that they're going to say, 'States, it's your issue.' And if the state decides to have gay marriage, then federal benefits will follow ... but we are not going to impose our will on the states. It's this federalist system that we have. That's a conservative approach. I don't think either side will like it that much. But judges should be restrained, and I think it's a restrained approach.

"I would guess that's the way they'll go. They'll kick out the federal DOMA and let the states do what they want."

Anderson said he thought the U.S. high court had made the wrong decision on the Citizens United case, which removed limits on campaign spending by corporations and labor unions. "I don't equate money with free speech," he said. "There are others who disagree with me."

LEARN MORE ABOUT JUSTICE PAUL ANDERSON:

• Supreme Court Justice Paul Anderson's retirement approaches
"Anderson, despite the authority of the black robe, has also been approachable on the bench and off it. He said when he was first invested at the state Appeals Court, he decided he would not retreat onto the bench. 'I decided good, bad or indifferent, I would reach out,' Anderson said." (Star Tribune)

• Attorneys of the Year: Justice Paul Anderson
"There's a local university that put up a billboard saying 'Come spend four years with us. It'll be the best four years of your life.' I felt that was such a disheartening message &mdash that your life peaks during your four years in college," he said. "I am leaving the court at this stage because of mandatory retirement. And I would not say my last 21 years as an appellate judge have been the best years of my life. I'd say they've been the best 20 years so far." (Minnesota Lawyer)

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