Baker v. Nelson#Facts and trial

On 18 May 1970, activists James Michael McConnell, librarian,The Board of Regents revoked an offer mailed by the University Librarian to McConnell.

• 1967: McConnell insisted, on Baker's 25th Birthday, that he would accept Baker's offer if, and only if, the relationship would eventually be recognized as a "legal" marriage.
• 10 July 1970: The Board accepted the recommendation of its Executive Committee "That the appointment of Mr. J. M. McConnell to the position of the Head of the Cataloging Division of the St. Paul Campus Library at the rank of Instructor not be approved on the grounds that his personal conduct, as represented in the public and University news media, is not consistent with the best interest of the University." See: Letter from James F. Hogg, Secretary, the Board of Regents; hand delivered to McConnell.
• 1971: A federal court of appeals allowed such discrimination to continue.
• 1972: The Hennepin County Library, a diverse and growing system of 26 facilities hired McConnell; he rose to the level of Coordinating Librarian before retiring 37 years later.
• See: McConnell Files, "Full Equality, a diary" [volumes 5a-e], Tretter Collection in GLBT Studies, University of Minnesota Libraries and Richard John Baker, law student on the Minneapolis campusA student body president known by different names; elected 1971, re-elected 1972.
• March 1942: Richard John Baker, Certificate of Birth
• September 1969: Jack Baker, name adopted to lead activists demanding gay equality
• August 1971: Pat Lyn McConnell, married name; by Decree of Adoption
• See: McConnell Files, "Full Equality, a diary" [volumes 6a-b], Tretter Collection in GLBT Studies, University of Minnesota Libraries of the University of Minnesota,2012: University president Eric Kaler apologized to McConnell for the "reprehensible" treatment he endured from the Board of Regents in 1970. See: Anon., "News", University News Service, 22 June 2012
• 2018: President Kaler affirmed his 2012 News statements. Action taken by our Board in 1970, he said, "is today worthy of deep criticism - of rebuke and censure." See: Email to Logan Chelmo, 27 June 2018; class of 2018, Shakopee High School, located in Shakopee, Minnesota
• 6 June 2020: McConnell is enrolled as a member of the Heritage Society of the President's Club. See: Letter from xxx.
• See: McConnell Files, "America's First Gay Marriage" [Binder #7, MEMORANDUM for the record], Tretter Collection in GLBT Studies, University of Minnesota Libraries applied for a marriage license in Minneapolis. Gerald Nelson, Clerk of District Court in Hennepin County, denied the request on the sole ground that the two were of the same sex. The couple filed suit in district court to force Nelson to issue the license.Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3-4 (statement of the case); Court Won't Let Men Wed, N.Y. Times, Jan. 10, 1971 at 65.

The couple first contended that their request for a marriage license was not forbidden.1970: "Minnesota Statutes Annotated", West Publishing Co.

• Chapter 517.01: Marriage a civil contract. "Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties, capable in law of contracting, is essential."
• Chapter 517.03: Marriages prohibited. [The list does not include parties of the same gender.] If the court were to construe the statutes to require different-sex couples, however, Baker claimed such a reading would violate several provisions of the U.S. Constitution:Appellant's Jurisdictional Statement, Baker v. Nelson at 6 (how the federal questions were raised); Baker v. Nelson, 191 N.W.2d 185, 185-86 (Minn. 1971); The Legality of Homosexual Marriage, 82 Yale L.J. 573, 573-74 (1973).
• First Amendment (freedom of speech and of association),
• Eighth Amendment (cruel and unusual punishment),
• Ninth Amendment (unenumerated right to privacy), and
• Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause).

The trial court dismissed the couple's claims and ordered Nelson not to issue the license.

The couple appealed the district court's decision to the Minnesota Supreme Court. The Court heard oral argument in the case on September 21, 1971. During the oral argument, while Baker and McConnell's lawyer was presenting his case, Justice Fallon Kelly turned his chair around, thus literally turning his back on the attorney. The justices did not ask a single question during the oral argument to Baker and McConnell's lawyer or to the assistant county attorney who represented the clerk.William Eskridge and Darren Spedale, [https://books.google.com/books?id=PFpd8dq7jJcC&pg=PA22 Gay Marriage: For Better or Worse? What We've Learned from the Evidence] 22 (2006). From Google Books. Retrieved May 19, 2016.

In a brief opinion issued on October 15, 1971, authored by Justice C. Donald Peterson, the Minnesota Supreme Court unanimously affirmed the trial court's dismissal. Based on the common usage of the term "marriage" and gender-specific references elsewhere in the same chapter, the Court held that the statutes prohibited marriage between persons of the same sex.Baker, 191 N.W.2d at 185-86; Rhonda R. Rivera, Our Straight-Laced Judges, 30 Hastings L.J. 799, 874-75 (1979). This restriction, the Court reasoned, did not offend the Due Process Clause because procreation and child rearing were central to the constitutional protection given to marriage.Baker, 191 N.W.2d at 186-87; Rivera at 875; The Legality of Homosexual Marriage at 579 n.27.

With respect to the claim of an equal-protection violation, the Court found that childless marriages presented no more than a theoretical imperfection in the state's rationale for limiting marriage to different-sex couples. It found the plaintiffs' reliance on the U.S. Supreme Court's recent decision in Loving v. Virginia, finding an anti-miscegenation law unconstitutional, failed to provide a parallel: "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."Baker, 191 N.W.2d at 187; Rivera at 875.

The Court acknowledged that Justice Goldberg's concurrence in Griswold v. Connecticut, which argued that criminalizing the possession of contraceptives violated the right to marital privacy, found support for marital privacy partly in the Ninth Amendment, but the Court distinguished Griswold and found no authority for the Ninth Amendment being binding on the states.Baker, 191 N.W.2d at 186-87; The Legality of Homosexual Marriage at 573-74 n.3. The Court dismissed the plaintiffs' claims under the First and Eighth Amendments without discussion.Baker, 191 N.W.2d at 186 n.2.

Baker and McConnell appealed the Minnesota court's opinion to the U.S. Supreme Court. There, they claimed that the marriage statute, as construed, implicated three rights: it abridged their fundamental right to marry under the Due Process Clause of the Fourteenth Amendment; discriminated based on gender, contrary to the Equal Protection Clause of the Fourteenth Amendment; and deprived them of privacy rights flowing from the Ninth Amendment to the United States Constitution.Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3, available at [http://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf DOMAwatch.org] {{Webarchive|url=https://web.archive.org/web/20070928004403/http://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf |date=2007-09-28 }} (accessed Oct. 28, 2009) (questions presented).

In his "Motion to Dismiss Appeal and Brief", the Hennepin County Attorney argued, correctly, that the marriage license issued previouslySources: Michael McConnell Files, "America's First Gay Marriage" [binder #7], Tretter Collection in GLBT Studies, U of M Libraries.

• In Mankato; approved by the Clerk of District Court, Fifth Judicial District, which includes all of Blue Earth County.
• "Daily Record", Mankato Free Press, 16 August 1971, p. ? made this case moot.Sources: Michael McConnell Files, "America's First Gay Marriage" (binder #3), Tretter Collection in GLBT Studies, U of M Libraries.
• October Term, 1972: "Appellee's Motion to Dismiss Appeal and Brief" by George M. Scott, County Attorney
• page 7: "Questions Raised by This Appeal Are Moot". On October 10, 1972, the U.S. Supreme Court responded with a one-sentence order: "The appeal is dismissed for want of a substantial federal question."{{cite court |litigants=Baker v. Nelson |vol=409 |reporter= |opinion=810 |pinpoint= |court=U.S. |date=1972 |url=https://www.scribd.com/doc/21017674/Baker-v-Nelson-409-U-S-810-1972 |accessdate=April 1, 2012 |quote=The appeal is dismissed for want of a substantial federal question.}}{{Cite web|url=https://catalog.archives.gov/id/26318353|title=Baker v. Nelson, Case # 71-1027|last=|first=|date=October 10, 1972|website=National Archives and Records Administration|publisher=|access-date=June 16, 2016}}

In most cases presented to the U.S. Supreme Court, the Court's refusal to hear the case is not an endorsement of the decision below.See, e.g. [http://www.usdoj.gov/osg/briefs/help.html Briefing Glossary], Office of the Solicitor General website (see "Appellate jurisdiction" and "Certiorari"; accessed Oct. 25, 2009). However, since this case came to the Court through mandatory appellate review,The U.S. Supreme Court was required to accept the appeal as a matter of right, a practice that the Supreme Court Case Selections Act ended in 1988. the summary dismissal is a decision on the merits of the case.Project, {{cite journal |title=Developments in the Law: The Constitution and the Family |journal=Harvard Law Review |volume=93 |issue=6 |year=1980 |pages=1156–1383, 1274 |doi=10.2307/1340703 |jstor=1340703 }} (discussing Baker{{'}}s posture as precedent); see, e.g. {{cite journal |first=Pamela R. |last=Winnick |title=The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda |journal=Columbia Law Review |volume=76 |issue=3 |pages=508–533 |year=1976 |doi=10.2307/1121552 |jstor=1121552 |quote=a dismissal by the Supreme Court is an adjudication on the merits... a lower federal court must consider itself bound by the dismissal when a similar challenge comes before it }} As binding precedent, Baker prevented lower courts from coming to a contrary conclusion when presented with the precise issue the Court adjudicated in dismissing the case.See, e.g. [http://openjurist.org/432/us/173 Mandel v. Bradley], 432 U.S. 173, 176 (1977) ("[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.... They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions."); see generally Note, {{cite journal |title=The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley |journal=Virginia Law Review |volume=64 |issue=1 |year=1978 |pages=117–143 |jstor=1072545 |last1=t. l. p |first1=Jr |doi=10.2307/1072545 }}

The "moot" question suggested that perhaps the "precise issue" was not the right of citizens to marry the adult of one's choice.

When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions.'Robert L. Stern, et al., Supreme Court Practice 296 (6th ed. 1986) ("the Court has become increasingly concerned that these summary dispositions on the merits are uncertain guides to the lower courts bound to follow them and not infrequently create more confusion than certainty in the development of the law"). The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:E.g. William J. Schneier, Note, The Do's and Don'ts of Determining the Precedential Value of Supreme Court Summary Dispositions, 51 Brook. L. R. 945 (1985).

• The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.Schneier at 957 (the Court has "limited the precedential value of summary dispositions to cases with legally indistinguishable facts."); Stern at § 4.30.
• The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court's decision.Schneier at 960 ("a court must... examine the jurisdictional statement to determine which issues were directly presented to the Supreme Court..."); Stern at § 4.30.
• Of the issues presented, only those necessarily decided by the Court in dismissing the case control.Schneier at 961 ("which of the issues presented to the Court were necessarily decided by the summary disposition...").
• Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.Schneier at 961 ("determine whether there have been doctrinal developments that supersede the summarily adjudicated case").

In recent years, most judges faced with claims like those in Baker have concluded that subsequent developments render Baker no longer authoritative. During the 2013 oral argument in Hollingsworth v. Perry, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg summarized her view of Baker: "The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don't think we can extract much in Baker v. Nelson."{{cite news|last1=Barnes|first1=Robert|title=Supreme Court: Was gay marriage settled in 1972 case?|url=https://www.washingtonpost.com/politics/courts_law/supreme-court-was-gay-marriage-settled-in-1972-case/2014/08/17/1a5e41f8-23c6-11e4-86ca-6f03cbd15c1a_story.html|accessdate=October 3, 2014|newspaper=Washington Post|date=August 17, 2014}}

Following the Supreme Court's ruling in June 2013 in United States v. Windsor that found unconstitutional the provision of the Defense of Marriage Act that forbade federal government recognition of same-sex marriages, no U.S. Court of Appeals held that Baker controlled in a case challenging a state ban on same-sex marriage,{{cite web |last=Carpenter |first=Dale |title=Symposium: Judge Sutton's trilemma| publisher=SCOTUSblog |date=October 7, 2014 |url=http://www.scotusblog.com/2014/10/symposium-judge-suttons-trilemma/ |accessdate=October 18, 2014}} until November 6, 2014, when the Sixth Circuit Court of Appeals ruled that Baker precluded it from considering several such cases from Kentucky, Michigan, Ohio, and Tennessee.{{cite news|last1=Geidner|first1=Chris|title=Federal Appeals Court Upholds Four States' Same-Sex Marriage Bans |url=https://www.buzzfeed.com/chrisgeidner/federal-appeals-court-upholds-michigan-same-sex-marriage-ban|accessdate=November 6, 2014|work=BuzzFeed News|date=November 6, 2014}} The author of the opinion, Judge Jeffrey Sutton, argued that Windsor in no way contradicted Baker: "Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it." He wrote in DeBoer v. Snyder that:{{cite web|title=DeBoer v. Snyder, November 6, 2014|url=https://s3.amazonaws.com/s3.documentcloud.org/documents/1354856/6th-circuit.pdf|publisher=Sixth Circuit Court of Appeals|accessdate=November 7, 2014}}

{{blockquote|It matters not whether we think the decision [in Baker] was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions.... The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.}}

Conversely, Judge Martha Craig Daughtrey dissented from the court's decision that Baker was binding precedent. She wrote:{{blockquote|And although the argument [Baker precedent] was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker.}}

The precedential value of Baker was the subject of ongoing disputes in some other circuits. In the First Circuit, an October 2014 district court decision rejected a similar challenge to Puerto Rico's ban on same-sex marriage and said the First Circuit had "expressly acknowledged–a mere two years ago–that Baker remains binding precedent" in Massachusetts v. United States Department of Health and Human Services.{{cite web |title=Opinion and Order |url=https://www.scribd.com/doc/243888222/3-14-cv-01253-57 |publisher=U.S. District Court for Puerto Rico |accessdate=October 21, 2014}}{{cite news|last1=Denniston|first1=Lyle|title=Puerto Rico ban on same-sex marriage upheld |url=http://www.scotusblog.com/2014/10/puerto-rico-ban-on-same-sex-marriage-upheld/|accessdate=October 22, 2014 |work=SCOTUSblog |date=October 21, 2014}} There were also dissenting opinions from the U.S. Courts of Appeal for the Fourth and Tenth Circuits in 2014 that found Baker controlling.

On June 26, 2015, the U.S. Supreme Court overruled Baker in Obergefell v. Hodges. In that decision, Justice Anthony Kennedy wrote:{{blockquote|The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.}}

{{main|Jack Baker (activist)}}

File:MikeMcConnellJackBaker.jpg (r), seen here in 2016]]

During the pendency of the case, the plaintiffs Michael McConnell and Jack BakerA law student on the Minneapolis campus of the University of Minnesota; student body president known by different names; elected 1971, re-elected 1972.

• March 1942: Richard John Baker, Certificate of Birth
• September 1969: Jack Baker, name adopted to lead activists demanding gay equality
• August 1971: Pat Lyn McConnell, married name; by Decree of Adoption
• See: McConnell Files, "Full Equality, a diary" [volumes 6a-b], Tretter Collection in GLBT Studies, University of Minnesota Libraries obtained a license in Blue Earth County, Minnesota, and returned to Minneapolis to be married on 3 September 1971 by a minister from the Hennepin Avenue United Methodist Church.{{YouTube|A1UYg8WoW9M|First Gay Wedding in Minnesota - Jack Baker & Mike McConnell, 1971}}

{{as of|2015|May}}, both were retired and living as a couple in Minneapolis.{{cite news|title=The Same-Sex Couple Who Got a Marriage License in 1971 |url=https://www.nytimes.com/2015/05/17/us/the-same-sex-couple-who-got-a-marriage-license-in-1971.html |accessdate=24 May 2015 |first=Erik |last=Eckholm |newspaper=New York Times |date=16 May 2015}} In a 2016 interview, Baker revealed that some legal battles were still on-going.{{cite web | url=https://minnesota.cbslocal.com/video/3347261-interview-minn-couple-behind-americas-1st-gay-marriage/ | title=Interview: Minn. Couple Behind America's 1st Gay Marriage}} In 2018, Assistant Chief Judge Gregory Anderson ruled that "The marriage is declared to be in all respects valid."Sources: Michael McConnell Files, "America's First Gay Marriage" (binder #4), Tretter Collection in GLBT Studies, U of M Libraries.

• Fifth Judicial District, File #07-CV-16-4559;
• 18 September 2018: CONCLUSIONS OF LAW by Assistant Chief Judge Gregory Anderson, at 4; [https://www.lib.umn.edu/sites/www.lib.umn.edu/files/2021-09/McConnellvBlueEarthCounty-17-Sept-2018-ConclusionsofLaw_ORDER.pdf#page=4 available online] from U of M Libraries.
• . . . "The September 3, 1971 marriage of James Michael McConnell and Pat Lyn McConnell, a/k/a Richard John Baker, has never been dissolved or annulled by judicial decree and no grounds currently exist on which to invalidate the marriage."
• "The marriage is declared to be in all respects valid".The marriage certificate is [https://www.moms.mn.gov/ available online] in Minnesota Official Marriage System (MOMS). Search for Blue Earth, [Both Applicants], Pat Lyn McConnell, 9/3/1971.

• List of United States Supreme Court cases, volume 409
• List of LGBT-related cases in the United States Supreme Court

{{reflist|group=note}}

{{Reflist|30em}}

• [https://scholar.google.com/scholar_case?case=14283825888588258352 Text of Baker v. Nelson from Minnesota Supreme Court (1971)]
• [https://www.scribd.com/doc/21017674/Baker-v-Nelson-409-U-S-810-1972 Text of Baker v. Nelson from U.S. Supreme Court (1972)]
• [https://web.archive.org/web/20070928004403/http://www.domawatch.org/cases/minnesota/bakervnelson/BakervNelsonJurisdictionalStatement.pdf Baker and McConnell's jurisdictional statement filing with the U.S. Supreme Court]

Category:Minnesota state case law

Category:1972 in United States case law

Category:LGBTQ rights in Minnesota

Category:1971 in Minnesota

Category:1972 in LGBTQ history

Category:Overruled United States Supreme Court decisions

Category:United States same-sex union case law

Category:1971 in LGBTQ history

Category:LGBTQ history in Minnesota