Minnesota Daily, September 30, 1976
Fight for legal gay marriages continues
By Tim Campbell
Rights Reserved September 30, 1976
Slightly updated June 24, 2004
0n May 18, 1970, University of Minnesota law student Jack Baker applied for a license to marry U of M library staff appointee Mike McConnell and began revolutionary history.
University regents arched their backs and nixed McConnell’s appointment. Students, by contrast, elected Baker student body president the following two years.
In the near future, McConnell and Baker will address the courts for at least the eighth time in an effort to vindicate their marriage rights.
For more than six years now, two hostile camps have been firing verbal muskets at each other: Christian traditionalists opposing progressive secularists.
The Christians have offered their customs since biblical times as precedent and will not relent. They have repeatedly ignored, discounted, bullied and otherwise outraged the gay couple.
The secularists, who quote worldwide anthropological history, Minnesota statutes and the U.S. Constitution, bristle at any mention of the Bible in the courts of law.
Two separate issues have also crystallized in the strife—the abstract right of gays to marry vs. the validity of the marriage of two gays who were in fact clever enough to obtain a license.
Congruent with the bicentennial theme, the progressive secularists point to ample precedents for same-gender marriage among members of North American Indian tribes including the Cheyennes, the Mohaves, the Nuers, the Tetons and many other non-Christian cultures throughout history.
Baker and McConnell insist that 1941 Minnesota marriage statutes are simple and clear, stating straightforwardly: “Marriage, so far as its validity is considered, is a civil contract, to which the consent of the parties, capable in law of contracting, is essential. Lawful marriage hereafter (Campbell’s emphasis) may be contracted only when a license has been obtained therefore as provided by law and when such marriage is contracted in the presence of witness and solemnized by one authorized.”
That Minnesota statue says further “Every person who has attained the full age of 18 years is capable in law of contracting marriage, if otherwise competent.”
Baker and McConnell contend that this statute was written to eliminate confusion proceeding from “common law marriages” and that other Minnesota statutes prohibit marriage essentially on only two grounds—consanguinity and previous marriage obligations.
Finally, Baker and McConnell argue that the right to marry is one of those inherent rights “retained by the people” according to the Ninth Amendment to the U.S. Constitution.
Baker and McConnell thus conclude that interference with their marriage rights is an unsolicited imposition of Christian limitations on them contrary to the First Amendment. They ask the courts to abstract the secular essence of marriage from religiously delimited custom and then to apply the law equally to all citizens as commanded by the Fourteenth Amendment.
The courts, on the other hand, refuse to accept, much less read the couple’s analysis of law and research. Instead, judges bury their noses in “common law,” sure to find no precedent for same-gender marriage to disturb them.
Stubbornly, bureaucrats and courts alike discount or ignore the 1941 legislative act eliminating “common law’ confusion. They refuse to look at non-Christian history and conveniently forget that the bulk of “common law” was first decreed by priests.
In this narrow context, the Minnesota Supreme Court asserted without blushing that “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 a the Book of Genesis.”
Judge C. Donald Peterson ventured to write this opinion despite data in Baker and McConnell’s brief which established that about one third of the marriages reviewed in the judge’s own courts involved childless couples.
Peterson’s opinion made light of Minnesota statutes and scorned the Ninth Amendment. He somehow concluded that same-gender marriages were prohibited since they were not specifically authorized.
Baker and McConnell insist that every first year law student learns that in the USA, the opposite is legally true. “What is not explicitly prohibited in law is permitted,” they argue.
An integral picture of the obstreperousness McConnell and Baker have encountered over the years would in fact involve a long history of five legal battles: 1. The fight over the initial marriage license application (no license issued). 2. The fight over their factual marriage pursuant to a license issued in Mankato, Minnesota. 3. The fight to save McConnell’s job at the University of Minnesota. 4. The fight to secure tax benefits as a married couple. 5. The fight to secure veterans benefits for Mike McConnell as Baker’s legal spouse.
These five controversies are capsulated in the following ledger of officials and their tradition guarding.
George M. Scott was the attorney who charged Hennepin County $21,968 to advise “there is no interpretation of our marriage laws…which indicate that the parties to a marriage contract are ever any other than a man and a woman.”
Thomas Bergin was the judge who refused to accept a memorandum of law stating Baker and McConnell’s position.
C. Donald Peterson was the author of the Minnesota Supreme Court 1971 opinion that cited the Book of Genesis.
Philip Neville was the judge who upheld McConnell’s right to his job at the U of M library.
Roy L. Stephenson was the federal appeals judge who overturned Neville calling same-sex marriage “a socially repugnant concept.”
Earl R. Larson was the federal appellate judge who refused to review the case on appeal from the Minnesota Supreme Court calling it “without merit.” Larson’s refusal conceals fears that recognition of Baker and McConnell’s case would open the doors to “countless legal rights” for gay and lesbian couples. (Author’s update: in 1997, the US General Accounting Office counted them: 1,049.)
Warren Burger was the U.S. Supreme Court Judge who wrote the order which refuses to review Baker and McConnell’s appeal from Judge Larson “for want of a substantial federal question.”
***
Thinking gays believe that Baker and McConnell’s statutory right to marry in Minnesota could not be clearer. Both of these citizens were of age. They were not blood-related, and they were free from previous marital bonds.
In other words, each was independently competent to marry. It is simply absurd to posit that two would-be spouses, each competent to marry, suddenly become incompetent by choosing each other.
But the latest court decision in the controversy by federal Judge Earl Larson raised the question that gives gay marriage its most measurable socioeconomic importance.
Larson alleged the case was without merit on appeal from the Minnesota Supreme Court 1971 decision. To do that, Larson ignored information in Baker and McConnell’s brief that established the very same appeals court had ruled in 1899, 1911 and 1926 that it had no power to dissolve a “prohibited marriage” once performed.
Let us note here that Baker and McConnell’s factual wedding occurred September 3, 1971. That is several weeks before the August, 1971 Minnesota Supreme Court ruling about the first application for a wedding license. That decision merely upheld the clerk who refused to issue that license.
But to compound injury with insult, Larson signaled Baker and McConnell and the interested press to lay off: “The Plaintiffs have had their ‘day in court.’ They are not entitled to …re-litigate each time they discover some new adverse effect flowing from their non-married status.”
Larson even continued to list five specific economic benefits and allude to “countless other legal rights” which would be denied Minnesota gay couples. This is precisely the point.
Progressives believe it is the sworn duty of the courts to eliminate such inequities. In the words of the Michigan court which broke centuries of precedent to grant “loss of consortium” (marital fellowship) damages to a woman for the first time. Previously, only men had received such benefits. That court wrote “Our (the court’s) oath is to do justice, not to perpetuate error.”
If the courts cannot bring all our citizens equal treatment despite past inequities, let’s program our laws into computers and get rid of judges.
The institution of marriage has been affected drastically by changing times. Practically no one perceives a need to limit sexual behavior strictly to the confines of marital contracts.
The age of marriage has risen steadily. Countless couples use contraceptives with the sanction of the U.S. Supreme Court. (Author’s emphasis.)
Indeed, the courts would be pressed to explain any difference between a gay couple and a straight couple equipped with vasectomies and IUDs.
In short, it is now absurd to view “breeding” as essential to marriage. What remains is rather an ordinary civil contract between consenting adults.
Elderly, married, white male judges must begin to take these facts into account whether they like them or not.
The U.S. Supreme Court, on the other hand, was correct to a point in avoiding marital issues. Supervision of fucking has traditionally been left to the states.
But the U.S. Supreme court must also remember that in 1967 when “Mr. And Mrs. Loving “complained about the Virginia statute against inter-racial marriage, it moved in quickly. It decided that “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men…Marriage is one of the basic civil rights of man.”
It seems self-evident that vital personal rights and basic civil rights of man belong to gays no less than to mixed race couples. Whether opposing traditions involve race or gender preference should make no difference.
But perhaps when Burger dismissed the gays’ appeal he meant that marriage itself is not a “substantial question.” Why then do his court’s annals deal with straight marriages?
The Baker-McConnell union is now in fact ten years stable. (Author’s update: 38 years stable.) It merits as much judicial time as any other union.
(Author’s note: several concluding paragraphs on a jump page were lost when we Xeroxed this article many years ago. Sorry. June 24, 2004)
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