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posted Friday, May 14, 2010 - Volume 38 Issue 20
Minnesota couples challenge state's DOMA law
Section One
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Minnesota couples challenge state's DOMA law

by Mike Andrew - SGN Staff Writer

Three same-sex couples have filed suit to overturn a Minnesota law that bans same-sex marriages and prohibits the state from recognizing same-sex marriages performed elsewhere.

The suit was filed in Hennepin County District Court on May 11.

The couples contend that the state is violating their constitutional right to marry. At issue are several provisions of Minnesota state law.

The Minnesota Supreme Court held in Baker v. Nelson (1971) that state law prohibits marriages between same-sex partners. The couples contend that case was wrongly decided.

They also contend that the 1997 Defense of Marriage Act was passed in violation of the "single subject" rule of the Minnesota Constitution and should be thrown out.

Finally, they are seeking a court order to compel the state to begin issuing marriage licenses to same-sex couples.

Duane Gajewski and Doug Benson are one of the couples who have filed the suit.

They have been together 19 years, and have been married in two U.S. states and in Canada, and had a civil union in Vermont. In their home state of Minnesota, however, their relationship is not legally recognized.

"We're hoping just in case one of those marriages is recognized, we'll be safe," said Gajewski.

Benson, head of the nonprofit group Marry Me Minnesota, said that Minnesota's Defense of Marriage Act (DOMA) was passed illegally by the legislature.

"It was passed in violation of the single subject rule," which says that legislation cannot be passed while it is attached to an unrelated bill, he told the Minnesota Independent newspaper.

John Rittman and Tom Trisko, who are also part of the suit, have been together for 40 years.

"When I was growing up, you were called three things if you were Gay: You were sick, you were a sinner, and you were a criminal," said Trisko. "Today, everywhere we go we have to have a big file of documents with us, living wills, powers of attorney. It's a burden on a daily basis to not have the assumption we are married."

Asked why he filed the lawsuit, he replied, "I'm getting older. If not now, then when? When I'm dead?"

Lindzi Campbell and Jesse Dykhuis of Duluth have been together for three years and are raising two children. They are the third couple involved in the suit.

"We have a responsibility to teach our children to always do the right thing," said Dykhuis.

She added that their aim in joining the suit is to give their family and those of other same-sex couples more stability.

She recalled the scene when Campbell, a Duluth-area firefighter for 13 years, went into early labor with their son Sean, who is a plaintiff in the suit as well.

In order for Dykhuis to make medical decisions for Campbell and their newborn, she and Campbell had to go over a mountain of legal documents.

"Between contractions, we were signing legal documents," said Campbell. "That's no way to go through labor."

"The joys and benefits of marriage should be available to everyone, and the Minnesota Constitution has greater breadth on these rights than the United States Constitution," said lawyer Peter J. Nickitas.

Nickitas is representing the three couples, and he believes they will win their suit.

"The country is changing," he said. "And it's changing for the better."

Openly Gay Minnesota state legislator Scott Dibble, who represents Minneapolis, expressed skepticism, however.

"It is understandable that this lawsuit would be filed, given the pain, frustration and hardship for those families who are unable to fulfill basic responsibilities to each other because of deficiencies that currently exist in Minnesota state law," Dibble told the Minnesota Independent.

"I am concerned, though, that court and statutory precedent, and the lack of a sufficient constitutional foundation might make the likelihood of a successful outcome remote," he continued. "In that case, the prospect of further cementing precedence that is negative for our families is very real."

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