Aug 08, 2008  |  By: JOSHUA LYNSEN  | COMMENTS     

Doug Benson and Duane Gajewski are tired of waiting.

They’re tired of waiting for Minnesota legislators to overturn state laws that prohibit same-sex marriage. And they’re tired of waiting for gay organizations to come to their aid.

So five years after the suburban Minneapolis couple exchanged vows in Canada, Benson and Gajewski are preparing to challenge the status quo.

“Our rights are being violated and none of the organizations are coming forward to challenge these laws,” Benson said. “We feel it’s our job as citizens to do that. It’s our duty.”

Benson, 54, and Gajewski, 44, are joining other same-sex couples in Minnesota to compile a case to overturn the state’s 1997 law that specifically prohibits “marriage between persons of the same sex.”

Gajewski said the Defense of Marriage Act, which was passed as part of an omnibus legislative package, could be overturned for the same reason a state judge struck down a concealed handgun law in 2004.

Ramsey County District Court Judge John Finley ruled the handgun law was unconstitutional because it was attached to an unrelated bill and the Minnesota Constitution requires that bills deal with a single subject. The decision was upheld on appeal.

Gajewski said the same law firm that overturned the handgun law has tentatively agreed to take this case.

“So by having that same firm use that same argument to overturn the concealed carry law,” he said, “they’ll be using that same argument with the same court to get the DOMA law overturned here.”

Phil Duran, staff attorney at OutFront Minnesota, called the approach “a fascinating set of arguments.”

“If it works, that’s terrific,” he said. “But before we take a firm position on this thing, we’re going to have to take a look at the arguments they’re going to advance.”

Benson said the firm slated to handle the case, Mansfield, Tanick & Cohen, is unsure how the case will go.

“They don’t know,” he said. “But it’s certainly possible for it to be successful, I think.”

David Buckel, the marriage project director at Lambda Legal, said it’s also possible, though, that the case could do more harm than good.

“I mean, it’s tough to say,” he said. “It really depends upon a thorough and careful analysis of the state.”

Buckel wouldn’t say whether Lambda Legal would support the Minnesota case.

“It’s just a question of going state by state as things unfold and determining what’s smart and what’s strategic,” he said. “We have to make sure we rack up more wins than losses, because if we don’t, then we end up setting ourselves back many years.”

Gajewski said he understands why Lambda Legal prefers a measured approach.

“Their position is well meaning, but our position is in Minnesota, nothing has happened with respect to gay marriage,” he said. “Every time, we’re told to wait.”

Gajewski said he and Benson are tired of waiting, though, and are now recruiting couples to join the suit and share the costs. Already, three couples have joined the case and two more are pending.

“We’re also looking for couples to contribute to the lawsuit,” he said. “We’re hoping to find 30 to 40 couples that would kick in $1,000 each to support the effort.”

Benson said he wouldn’t decline the assistance of Lambda Legal or similar organizations.

“If they’d like to take the case,” he said, “we’d be very happy to have them.”

But with or without such organizational support, Benson said, the laws in Minnesota will be challenged.

“If other organizations choose to support us, that’s great,” he said. “But if they don’t, we’re going forward anyway.”