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Patrick Condon, Associated Press Writer, Published May 17 2010

Gay marriage lawsuit splits activists

MINNEAPOLIS – Many gay couples in Minnesota looked south in envy when Iowa legalized same-sex marriage in 2009. But some leading gay activist groups and leaders are calling a similar effort here risky and even misguided, with some worried it could actually set back their effort.

Leaders of OutFront Minnesota, the state’s most powerful gay rights group, oppose the lawsuit filed last week in Hennepin County. Democrat Scott Dibble, a gay state senator from Minneapolis, predicted its chances for success are “remote.” Dale Carpenter, a University of Minnesota law professor and expert on legal issues surrounding sexual orientation, said it’s likely the lawsuit would “do more harm than good.”

A nearly 40-year-old Minnesota Supreme Court ruling shut down gay marriage as a possibility in Minnesota at a time when it barely even registered in most peoples’ minds.

Activists worry that bringing the issue back before today’s right-leaning state Supreme Court could cement that precedent at a time when they think public attitudes are shifting in favor of gay marriage.

“It seems entirely possible what they’ll end up doing is reaffirming and refreshing a ruling that’s been fading for the last few years,” said Phil Duran, OutFront’s legal counsel.

OutFront and others prefer a legislative route to gay marriage in Minnesota. While that seems all but impossible under Republican Gov. Tim Pawlenty, a consistent opponent, activists say it could change quickly if Democrats win the governorship in November and keep control of both houses of the Legislature.

“I think by that route, it’s going to come sooner rather than later,” Dibble said.

OutFront and another local gay rights group, Project 515, have for several years directed lobbying efforts not just toward securing gay marriage but toward smaller law changes aimed at strengthening legal bonds between gay couples. Pawlenty has vetoed some of those efforts, as he did last week in shooting down a bill that granted rights to same-sex couples when one of the partners dies.

The plaintiffs said they’re tired of waiting for the ideal circumstances.

“The position that we need an incremental approach is a failed approach to gaining civil rights,” said Doug Benson, who along with his partner of 20 years began to plan for the lawsuit several years ago. “When you go into a negotiation asking for crumbs, what you usually end up coming away with is nothing.”

It was 40 years ago that Jack Baker and Michael McConnell pursued a similar all-or-nothing approach, but at a time when modern gay civil rights was still a brand-new concept born of New York City’s Stonewall riot less than a year earlier.

After being denied in Hennepin County, the couple obtained a Minnesota marriage license in Blue Earth County – though an official there later claimed to not know they were both men, according to a 2004 look back at the case by the Star Tribune. A Methodist minister then married them.

But a few weeks later, the state Supreme Court ruled the marriage invalid, saying Minnesota law prohibited marriage between two people of the same sex. In 1997, the Minnesota Legislature toughened that stance further by banning same-sex marriage.

Around the same time, Baker became the first openly gay student body president at the University of Minnesota. The couple had a brief spell of national celebrity, appearing on “Donahue” and on the cover of Look magazine.

The two men still live in Minneapolis. Reached last week by phone, Baker declined to be interviewed.

Duran, the OutFront lawyer, praised Baker and McConnell for “amazing foresight” and said he believes the arguments they pioneered will ultimately win the day. At the same time, he said the Baker v. Nelson decision has “weighed around our necks like a millstone for 40 years. It slowed down progress, and I know there are lawyers in town who are still disappointed they took their case to the courts.”

Pawlenty appointed a majority of the current members of the state Supreme Court, and the court appears likely to move further right with his appointment last week of David Stras, a University of Minnesota law professor who once clerked for U.S. Supreme Court Justice Clarence Thomas and held membership in the conservative Federalist Society.

Given that appointment, Dibble said, “I think their prospect for success became even more remote a day after they filed their lawsuit.”

Law professor Carpenter said if the lawsuit fails, it could give legislators cover to avoid moving forward on gay marriage rights. He said he’s also worried it would give new ammunition to conservative groups that want to renew their push for a state constitutional ban on gay marriage that’s been dormant since 2005.

Peter Nickitas, the attorney for the plaintiffs, said they are not swayed by pleas for pragmatism. He said many landmark civil rights decisions by state and federal courts of the past century were initially given small chance for success.

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