Gay marriage, ca. 1970

by on December 24, 2012  •  In Marriage, States
Baker McConnell

This feature from AP tells the back story of Baker v. Nelson, the first gay marriage case to reach the Supreme Court, in which the  Court in 1972 dismissed the plaintiffs’ claim “for lack of a substantial federal question.” In other words, the Supreme Court considered the couple’s Equal Protection argument to be so patently invalid that it did not merit the Court’s attention. How the world has turned.

There were actually three gay marriage claims litigated in the early 1970′s. One was filed by a lesbian couple in Kentucky a few months after Baker’s in 1970; the third, by a gay couple in Washington state the following year. But the Baker case was the only one to reach the door of the Supreme Court.

When Jack Baker proposed to Michael McConnell that they join their lives together as a couple, in March 1967, McConnell accepted with a condition that was utterly radical for its time: that someday they would legally marry.

Just a few years later, the U.S. Supreme Court slammed the door on the men’s Minnesota lawsuit to be the first same-sex couple to legally marry in the U.S. It took another 40 years for the nation’s highest court to revisit gay marriage rights, and Baker and McConnell — still together, still living in Minneapolis — are alive to see it…

“The outcome was never in doubt because the conclusion was intuitively obvious to a first-year law student,” Baker wrote in an email to The Associated Press. The couple, who have kept a low profile in the years since they made national headlines with their marriage pursuit, declined an interview request but responded to a few questions via email.

…[M]arriage between two men was nearly unthinkable to most Americans decades earlier when the couple walked into the Hennepin County courthouse in Minneapolis on May 18, 1970, and tried to get a license.

New York City’s Stonewall riots, seen now as the symbolic start to the modern gay rights movement, were less than a year in the past. Sodomy laws made gay sex illegal in nearly every state; most gay men and lesbians were concerned with much more basic rights like keeping their jobs and homes or simply living openly…

Forty years after they appeared in a “Look” magazine spread and on “The Phil Donahue Show,” Baker and McConnell have retreated from public life. The men, both 70, live in a quiet, nondescript south Minneapolis neighborhood. McConnell recently retired after a long career with the Hennepin County library system. Baker, a longtime attorney who ran unsuccessfully for Minneapolis City Council and a judgeship in the years after they pursued a marriage license, is mostly retired as well. Their case is no longer widely recalled in Minnesota, and the couple has mostly withdrawn from open activism, although the two men are working on a book about their lives…

The high court in October 1972 declined to hear arguments in Baker v. Nelson, rejecting it in a one-sentence dismissal “for want of a substantial federal question.” …

“I am convinced that same-sex marriage will be legalized in the United States,” Baker told a group of lawyers on Oct. 21, 1971, quoted then by the St. Paul Pioneer Press (in a story that described him as an “admitted homosexual”). But for years after the high court refused to hear arguments in Baker v. Nelson, its single sentence was cited as precedent by federal courts that ruled against same-sex unions.

According to an unpublished book about their case by Ken Bronson, a Chicago-based amateur historian who extensively interviewed Baker and McConnell, the two met at a Halloween party in Norman, Okla., in 1966. McConnell, at this first meeting, expressed his belief that gay people should not be treated like second-class citizens. Not long after, Baker —a U.S. Air Force veteran with an undergraduate degree in engineering — was fired from a job at Tinker Air Force base for being gay.

Soon the couple relocated to Minneapolis and the University of Minnesota, McConnell to take a job at its library and Baker to study law. He joined a campus group called FREE (Fight Repression of Erotic Expression), an early gay-rights group.

“The fear then wasn’t that you’d be discriminated against, that was a given,” said Jean Tretter, a member of FREE who went on to decades of gay activism in Minnesota. “You were a lot more afraid that someone might come after you with a shotgun.”

Baker and McConnell — educated, clean-cut and handsome — contrasted with the typically scruffy counterculture activists of the era. But the Hennepin County attorney blocked their bid for a marriage license, a decision upheld by a district judge and affirmed by the state Supreme Court with reasoning that echoes in today’s arguments against gay marriage: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the Book of Genesis.”…

It was a stormy time for the couple. Soon after McConnell relocated to Minnesota, the University of Minnesota’s Board of Regents yanked his job offer because he was openly gay; the U.S. Supreme Court rejected his separate lawsuit to get it back. In April 1971, amid both legal dramas, Baker was elected and then a year later re-elected as president of the university’s student government…

“Jack was the politician — outgoing and effective, manipulating the material world,” said Roger Lynn, a retired Methodist pastor who performed a marriage ceremony for the men in 1971, and who remains in touch with them occasionally. “Michael was the librarian, detail-oriented, more introverted. They were a good match, and they’re still making it work.”

Unfortunately, the Supreme Court’s dismissal of the case set a precedent that has been a headache ever since. In the cases now pending at the Court, the defenders of Prop 8 and DoMA argue that the Baker v. Nelson precedent is still good law, and several lower federal court and state supreme court judges have agreed. Only the Supreme Court can definitively rule otherwise.

Erasing that dismissal from 40 years ago is the least the Court should do when it decides the DoMA and Prop 8 cases in the spring.

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One Response to Gay marriage, ca. 1970

  1. K in VA December 24, 2012 at 5:48 PM

    If anything makes marriage a federal question, it’s DOMA.

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