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A “Stop, Look, Listen” Amendment for Minnesota's Constitution

By: Robert S. Carney Jr -- 4-2-06 -- revised 4/10/06

Some people have attacked the current effort to amend the Minnesota Constitution to protect marriage, saying it's unnecessary, or it would unfairly single out one group.

Others disagree, and say something like this: “Look at the history of 'activist court rulings.' It's too easy for judges to claim to discover constitutional rights that most or all people didn't have in mind, and wouldn't have accepted, when the constitution was agreed to. We need to make sure marriage doesn't fall victim to this process.”

Let's consider a possible “Stop, Look, Listen” amendment that might be agreeable to both groups. Here it is:

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Whenever a state court holds any non-criminal Minnesota law violates the State Constitution, the court's order shall be stayed for 90 days.  If during this 90 day period the Secretary of State's office receives a Petition for Amendment Review that is signed by 25% of the members of either house of the State Legislature, the court's order shall remain stayed until the completion of a) one full Legislative session commencing after the date of the court's order, and b) one subsequent general election. During this time, in addition to the Legislative process for amending the Constitution, an amendment shall also be placed on the ballot if a petition for the amendment signed by 50,000 Minnesota voters is received by the Secretary of State's office no later than the first Monday after the first day of October prior to the general election. If any such amendment is approved, the court's order shall be vacated, and the case shall be heard again, with the approved amendment to be taken as the most relevant rule of construction for the case.

The Legislature shall implement this amendment through appropriate legislation, and may by law provide a process for consolidating multiple amendments if they are substantially consistent in effect.

To see how this would work, let's consider the hypothetical case of a Minnesota Supreme Court ruling that our current marriage law is unconstitutional. Here's what would happen:

First, the court's ruling would be automatically stayed for 90 days.

Second, during this time, the Secretary of State would almost certainly receive a Petition for Amendment Review from 25% or more of the Legislators in either the House or the Senate.  This Petition would automatically stay the court's order for one Legislative session and the general election following the session.  During this time, either the Legislature, or the people directly by petition, could put a clarifying amendment on the ballot.

Third, if an amendment passed, the court would rehear the case, with the explicit instruction that the court must take the new amendment as the most relevant rule for deciding the case.

Because Minnesota courts are reasonable, we can expect that for most cases, no Petition for Amendment Review will be presented to the Secretary of State within 90 days of a court's order.  In cases where a Petition for Amendment Review was submitted, but no amendment emerged, the court's order would take effect after the next general election.  Except for these delays, the process would work exactly as it works today.

Let's consider why this approach should be agreeable to supporters and opponents of the current proposed amendment to protect marriage.

For supporters of a proposed marriage amendment, “Stop, Look, Listen” would let them put an amendment on the ballot if necessary, but only if necessary, to ensure Minnesota's current marriage law isn't "overruled" by an activist court. Beyond this, “Stop, Look, Listen” would give all Minnesotans protection against any and all “activist court” rulings. Isn't this better than trying to pass “pre-emptive amendments” against a list of things a court might do?

Here's a question for opponents of the proposed marriage amendment: If you think the “marriage amendment” is unnecessary, why not agree to “Stop, Look, Listen?” It doesn't single out anyone. “Stop, Look, Listen” simply provides a way for Minnesotans to be sure they don't wake up some morning to be told that their Minnesota Constitution says something that most people never intended it to say.

Like all constitutions, the Minnesota Constitution is a contract. When a court is uncertain about the meaning of a contract, there are standard, accepted ways to consider what the parties to the contract intended. The “Stop, Look, Listen” amendment is simply a way for the people of Minnesota to state our constitutional intentions more clearly, whenever necessary, to help the courts carry out their constitutional duty of interpretation.

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