President’s Column: Benson v. Alverson Update

Published by Minnesota Atheists on

By August Berkshire

Headshot of August Berkshire, smiling.

There have been three recent developments regarding Benson v. Alverson, the court case in which Minnesota Atheists has filed the sole amicus curiae (friend-of-the-court) brief on behalf of the Appellants.  

As you may recall, the case involves three same-sex couples (collectively known as “Marry Me Minnesota”) who are trying to get their out-of-state legal marriages recognized in Minnesota, as well as to obtain the right for other same-sex couples to obtain legal civil marriages in Minnesota.

MNA Legal Fund Fundraiser
On October 9th Minnesota Atheists held a $50 per person fundraiser to raise money for our Legal Fund. Speaking at the event were Appellants Doug Benson & Duane Gajewski and Tom Trisko & John Rittman, the plaintiff’s lawyer Peter Nickitas, and our lawyer Marshall Tanick.

It was moving to hear the heartfelt stories of the couples involved. Anyone who had any doubts that we were doing the right thing in filing our amicus brief would have had those doubts erased when they heard how the current religiously based (and biased) civil marriage laws had hurt our fellow Minnesotans.

Peter Nickitas spoke of some of the legal aspects of the case. But it was our own legal veteran, Marshall Tanick, who regaled us with behind-the-scenes insights into the working of the court and his impressions of the three judges who would be hearing the case. (He thought they were intelligent, fair-minded, and might well be sympathetic to the type of justice we were seeking. The three judges were picked at random from a larger pool of Appellate judges, and Marshall thought we had gotten a pretty good draw.)

We ran a discounted ad for the fundraiser in Lavender magazine (a large Twin Cities-based GLBT publication) to try to spur attendance, though admittedly it had little effect except to put us on their radar.

Our fundraiser was a great success, bringing in over $3,000, which was enough to cover our costs so far. We owe a tremendous amount of thanks and gratitude to our member Chris Matthews, who donated $2,000.

Lavender magazine
The Oct. 20, 2011 issue of Lavender magazine featured a lengthy article by reporter Kaitlyn Walsh, entitled “The Secular Side of Marriage Equality: Minnesota Atheists add nonsectarian viewpoints to a debate often dominated by religion.”  Here are some excerpts:

The amicus brief filed by Minnesota Atheists supports the couples in their effort to get rid of the law and argues the unconstitutionality of DOMA [Defense of Marriage Act], noting the law’s theological basis.
“[DOMA is] a religious law that’s not just a difference of opinion,” Berkshire said. “It’s a religious law that’s harming people.”
The amicus brief gives several sectarian arguments why same-sex marriage is considered unacceptable by some religious institutions, but says there is no secular reason to bar same-sex couples from opportunities given to heterosexual couples.
“The government should not even be looking at religion,” Berkshire said. “The government should only be looking at secular arguments and there are no good secular arguments against equality. There’s no reason not to grant it.”
To read the entire article, go to:

Appellate Court Hearing
The three same-sex couples (the Appellants), having previously lost in Trial Court, appealed their case to the Minnesota Appellate Court. They sued both Hennepin County and the State of Minnesota (the Defendants).  

Written briefs were filed by the Appellants and Defendants. An amicus brief on behalf of the Appellants was filed by Minnesota Atheists. These and other documents can be found at

Two amici briefs were filed on behalf of the Defendants. The first was by a coalition consisting of the Minnesota Catholic Conference, the Greater Minnesota Association of Evangelicals, and Upper Midwest Merkos. The second brief was filed by the Minnesota Family Council.

The nature of the groups bringing these amicus briefs should have alerted even the most casual observer that state endorsement of religious dogma was a major issue in this case.  

Oral arguments in front of a three-judge panel were heard in the Minnesota Appellate Court near the State Capitol on October 26th.

One of the major obstacles blocking legal equality for same-sex couples in Minnesota is a 1971 Minnesota Supreme Court case called Baker v. Nelson, where that court ruled that same-sex couples did not have a constitutional right to civil marriage. This case had been backed by Minnesota Atheists’ member Matthew Stark in his then-capacity as President of the Minnesota Civil Liberties Union.

In oral arguments, Peter Nickitas, lawyer for the Appellants, argued that Baker had been decided based on the U.S. Constitution and that the current case, Benson v. Alverson, should be decided based on the Minnesota State Constitution instead, whose protections had been interpreted more broadly than the federal constitution.  

He also argued that the rights of a child of a same-sex couple had never been addressed by the court.  (Appellants Lindzi Campbell & Jessica Dykhuis have a child.)  Furthermore, he said this case deserved to be judged on a “heightened scrutiny” basis, reserved for classes of people who historically have faced discrimination.

Peter petitioned the Appellate Court to send the case back down to the Trial Court for retrial under the proper standards.

The defendants, Hennepin County and the State of Minnesota, spent most of their oral argument time trying to run away from the case, claiming they were not the proper defendants.  Addressing the State, one of the judges asked, “If you are not the proper defendant, then who is?”  

The judge was aware of the 515 Minnesota laws that discriminate against gays and lesbians. The State argued that either the Minnesota Attorney General should have been the defendant or the various state agencies in charge of those 515 laws should have been the defendants. The judge didn’t seem to buy that argument.

A ruling by the Appellate Court is required within 90 days, and it is not likely to arrive much sooner than that.

If the judges agree with the Appellants, the case will be sent back down to the Trial Court to be reheard using new, correct standards. Whichever side loses at that level can be expected to once again bring it back to the Appellate Court.  

Amicus briefs are not accepted at the Trial Court level (which is why we didn’t submit one there last time), but we will resubmit our brief (no doubt with modifications) if this indeed does go down to the Trial Court and then back up to the Appellate Court.

Two other possible outcomes are that the Appellate Court either upholds the Trial Court ruling against the Appellants, or overturns it without sending it back to the Trial Court. In either of these scenarios, the losing side can be expected to appeal to the Minnesota Supreme Court, which may or may not decide to hear the case. 

If it goes to the Minnesota Supreme Court, Minnesota Atheists will be there with another amicus brief, continuing our fight for the right of all Minnesota citizens to be free from religion-based laws.

Minnesota Atheists

Positive Atheism in Action Since 1991