- The Washington Times - Monday, January 23, 2012

A ruling released Monday by a three-judge appellate panel in Minnesota has revived a gay-marriage lawsuit just as the battle over a state marriage amendment is getting underway.

“Big win!” Marry Me Minnesota wrote on its website shortly after the Minnesota Court of Appeals reversed part of the Benson v. Alverson case and sent it back to the lower court for reconsideration.

The decision was a victory for gay-marriage supporters because Hennepin County District Judge Mary DuFresne had dismissed the case on all counts.

“The appeals court ruling is obviously something we’re very pleased about. Now the case will go back to the lower court where we’ll have the opportunity to make our case based on the merits of the case, rather than just judicial maneuvering,” said Douglas Benson, who filed the lawsuit with his partner Duane Gajewski and two other couples.

“We expect the opportunity for full discovery, testimony, exhibits, evidence and a full-scale hearing on the merit, similar to the case of Perry v. Schwarzenegger,” the gay marriage case in California, said Minneapolis attorney Peter Nickitas, who is representing the Benson appellants.

Chuck Laszewski, spokesman for Hennepin County Attorney’s office, which represents Jill Alverson, the county registrar and respondent, said they were looking over the ruling very carefully, but had no further comment.

Monday’s unpublished ruling, which means it cannot be cited in other cases, arrives as efforts are heating up over a November ballot measure that would change the Minnesota Constitution to say that only man-woman marriages are legal.

The Benson case “is exactly the type of case that has resulted in same-sex marriage being imposed in other states, and highlights the need to enact the Marriage Protection Amendment in November,” said Jason Adkins, executive director of the Minnesota Catholic Conference and vice chairman of Minnesota for Marriage, which is promoting the amendment.

“Voters can make sure that this courts ruling is not the final word. The final word belongs to the people of Minnesota, not judges,” said Jordan Lorence, senior counsel at the Alliance Defense Fund, which represented the Minnesota Family Council in a friend-of-the-court brief in support of traditional marriage.

The case was filed after Ms. Alverson denied marriage licenses to the three same-sex couples. They sued, saying that Minnesota’s 1997 Defense of Marriage Act (DOMA) violated their rights to freedom of conscience, due process, equal treatment and freedom of association.

Judge DuFresne dismissed all these claims in her March 2011 ruling, in part because a 1971 Minnesota Supreme Court ruling, Baker v. Nelson, said man-woman marriage did not offend the U.S. Constitution. Since Minnesota’s state constitution is similar to the U.S. Constitution, it is unlikely there is a right in it to gay marriage, either, the judge reasoned.

The appellate court judges agreed that the appellants’ conscience rights were not being violated. “But because the district court inappropriately dismissed the matter at this early stage of litigation, we reverse and remand the remaining claims,” they wrote.

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