March 23, 2012 To: The Faculty From: Professors Daniel S. Kleinberger, Eileen A. Scallen, Anthony S.

Winer Re: Proposed Faculty Resolution against The Anti-Marriage Amendment to the Minnesota Constitution In 2006, the Faculty of William Mitchell College of Law passed almost unanimously a resolution opposing proposed legislation to place a constitutional amendment on the statewide election ballot to limit state-sanctioned marriage to opposite-sex couples. The proposed amendment was not enacted. However, in May, 2011, the Minnesota Legislature passed similar legislation, so that on Tuesday, November 6, 2012, the statewide election ballot will contain a proposed amendment to the constitution, Minn. Laws, ch. 88. The proposal will ask: Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota? (The Anti-Marriage Amendment). As a result, and consistent with the Facultys action in 2006, we intend to bring to the April, 2012 faculty meeting another resolution. We have attached the 2012 Resolution to this email.

The Threshold, Jurisdictional Issue The threshold question is why this issue warrants collective Faculty action. The Faculty does not act collectively on matters outside its purview, nor should it. As we stated in 2006, we believe emphatically that this matter is squarely within the scope of our authority as part of the governance structure of the College.1 On this threshold, jurisdictional issue the rationale is practical and the stakes dramatic. Approval of The Anti-Marriage Amendment could have a significant, negative impact on the academic environment and of William Mitchell. In particular, approval of The Anti-Marriage Amendment could substantially impair the Colleges ability to recruit and retain the best qualified students, staff, and faculty. If you doubt either the truth or materiality of this assertion:

The explanations and boundary protections offered in 2006 have proven valid over time. Since that vote, we have not seen a single attempt to seek a Faculty resolution on a matter not germane to the Colleges internal affairs.

Email re: Faculty Resolution Opposing the Anti-Marriage Amendment Please contemplate a member of the Colleges faculty or staff whose contributions to the College you value and who happens to be LGBT.

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Assume that The Anti-Marriage Amendment passes and subsequently we seek to recruit to Mitchell an individual equally valuable as the individual you are contemplating. Assume also that the individual is LGBT and has job opportunities in a state that has no anti-marriage constitutional provision. Then assess our chances of recruiting that individual.

We are by no means alone in this pragmatic view. As just one example, read this passage from an opinion column written by Marilyn Carlson Nelson, CEO of Carlson Companies: In a globally competitive world, we must attract the best talent available, period. Increasingly, companies are evaluated for their ability to create work environments that value diversity, promote gender equity, and are working-momand gay-friendly. These rankings are frequently referred to during the interview process by top talent who can be selective -- even in a down economy -- about where they choose to work. We can't afford to lose these workers to more welcoming communities if we are to remain competitive. I am reminded of a column by the late humorist Erma Bombeck. In a rare, serious moment, Bombeck wrote about the value of volunteers and worried that their contributions are often undervalued. She asked us to visualize ourselves standing on a dock waving goodbye to a ship loaded with America's volunteers and then to ponder what our lives and our society would be like without them. Today, I think of this imagery in other terms. I see myself at the dock waving goodbye to a ship filled with friends, family and colleagues -- all of whom happen to be gay. People who through a lifetime of ups and downs have laughed with me, supported me and enriched me. I wave goodbye to the hundreds of highly talented employees who have helped make Carlson a globally competitive and respected company. And, most painful of all, I wave goodbye to my daughter.2

Marilyn Carlson Nelson, The Marriage Amendment from All Angles, Star Tribune, January 14 , 2012; http://www.startribune.com/opinion/commentaries/137316283.html?page=all&prepage=1&c=y#continue retrieved 3/17/12.
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With regard to potential students, the risk is perhaps more worrisome. Even in 2003, when a strong majority of Americans opposed same-sex marriage, poll respondents in their late teens and twenties [were] more supportive of gay marriage than [were] older Americans.3 People with college educations were likewise measurably more supportive of same-sex marriage.4 The generation gap has persisted as the overall numbers have shifted inexorably toward majority acceptance of same-sex marriage. In 2010, the UPI reported: "There is a large generation gap on the issue.5 In particular, 64 percent of those under 30 back same-sex marriage.6 N.B. - the average age of a first year Mitchell student is now 26.3 years. Why The Anti-Marriage Amendment is Wrong In part, The Anti-Marriage Amendment is wrong for the same reasons that the Faculty is right to act collectively in this matter. The Amendment is contrary to the best interests of William Mitchell College of Law, conflicts with the Colleges anti-discrimination policy, and would enshrine in the state constitution express discrimination against the Colleges LGBT students, staff, and faculty. Moreover, because the Faculty has the authority to collectively oppose The AntiMarriage Amendment, the Faculty also has the authority to deploy its expertise to publicly urge the Amendments defeat. We can legitimately assert that expertise to echo the constitutional analysis recently expressed by Justice Kathleen Blatz and Walter Mondale, respectively the former Chief Justice of the Minnesota Supreme Court and former U.S. Senator and VicePresident of the United States. On March 13, 2012, they released a joint letter opposing The Anti-Marriage Amendment and urging all lawyers to do the same: Minnesotans of good will may continue to debate the merits of legally recognizing same-sex couples through marriage or some other status. But in its entire history, Minnesota has never preempted the ordinary process of representative government by enshrining one view of family law into its
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The Pew Forum on Religion and Public Life, Report on a Poll Taken November 18, 2003 , Part 2 , Gay Marriage (Even this youngest group of Americans do not, on balance, favor this idea [of same-sex marriage]; rather, they are divided. But that is in stark contrast to people in their forties and fifties, where twice as many oppose gay marriage as favor it. Among those in their sixties and seventies, opposition outnumbers support by as much as four-to-one.), http://www.pewforum.org/PublicationPage.aspx?id=647 retrieved 3/17/12 Poll, November 18, 2003 , retrieved 3/17/12. 4 Id. (Since younger generations are more likely to have college degrees than older, this education gap contributes to the overall size of the generation gap on gay marriage.). 5 http://www.upi.com/Top_News/US/2011/09/28/US-attitudes-on-homosexuality-shifting/UPI75841317228901/ , retrieved 3/17/12 (poll size more than 2000). 6 Id. (emphasis added). 3

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constitution. There is no compelling need to do so now. Regardless of your own opinions on the underlying issue, we should be united in our belief that the proposed constitutional amendment erodes the aspirational ideal that a constitution is foundational to our democracy and it exists to protect the rights of all.7

Defeating The Anti-Marriage Amendment will not change Minnesotas current policy on same-sex marriages. In 1971, the Minnesota Supreme Court was one of the first courts in the nation to deny a claim that same-sex couples have a constitutional right to obtain marriage licenses.8 Moreover, the Minnesota Defense of Marriage statute expressly limits marriage to one man and one woman.9 People of good faith may hold different views on whether the rights and benefits of statesanctioned marriage should be extended to same-sex couples, and if so, in what formdomestic partnerships, civil unions, or state-sanctioned marriage. We do not address, let alone seek to resolve, that question here. Our aim is only to protect William Mitchell from the academic detriment that could well ensue if this action against LGBT families and individuals were specifically to become a part of our state constitution. We seek to protect William Mitchell from harm and to preserve a fundamental tenet of our constitutional democracy. We ask for your support.

The full letter is available at http://mnunited.org/lawyers . Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971. Minn. Stat. 517.03, subd. 1(a)(4) (2011). 4

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