Gay marriage trial could kick off Sept 9 in Minneapolis
Motion to dismiss might be move to avoid divorcee judge
By Tim Campbell
Rights reserved July 26, 2004
On July 21, the Bush Administration filed a motion in District Court in Minneapolis to dismiss McConnell v USA, the lawsuit filed by J. Michael McConnell against the government and the Internal Revenue Service for denying him the right to file a joint income-tax return.
McConnell claims he married Pat Lyn McConnell (aka Jack Baker) on September 3, 1971 in a legal ceremony, with a license that has never been invalidated by any court. The license was obtained in Mankato, MN. The marriage was performed in Minneapolis and registered as required by law.
The motion to dismiss will be heard September 9 at 10:00 am before Magistrate Jonathan Lebedoff, previously a Hennepin County Judge. At that time, the burden will be on McConnell to show probable cause for his lawsuit against the Bush Administration and the IRS. Said differently, McConnell
Knowledgeable lawyers note that Magistrates do not have the power to dismiss this case on its merits. Only a judge a judge has that power and the action requires a written opinion.
If however, Magistrate Lebedoff finds in McConnell's favor, Judge Joan Ericksen will hear the case starting on September 9.
There is some speculation that this motion may have been filed in hopes of avoiding Judge Ericksen. A more complete analysis of this lady judge is presented in the accompanying article.
If Lebedoff finds against McConnell, the case will be refiled and end up perhaps before a different judge. Most court observers say the courts frown terribly on "judge shopping."
Do "Home field" advantage and divorcee judge favor McConnell v USA?
By Tim Campbell
[E-mail timcampbellxyx@yahoo.com]
July 26, 2004
Players for the first quarter, so to speak, of McConnell v USA, are now known and it looks like Baker and McConnell's 1970s seed sowing in Minnesota may give them a "home field" advantage."
McConnell claims $793 are due on a joint income-tax return for the year 2000. McConnell filed the joint return on the basis of a September, 1971 marriage and a marriage license obtained in Mankato, Minnesota. Baker had his name changed legally to Pat Lyn McConnell earlier that year in case he and McConnell were successful in attempts to adopt children. Consequently, the marriage license shows the names J. Michael McConnell and Pat Lyn McConnell. Authorities tried and failed to prove them guilty of fraud in this transaction.
McConnell is the first gay to sue the Federal Government, specifically, the Bush administration and the Internal Revenue Service, for income-tax benefits. It will be a year or two before the same-sex couples married in Massachusetts this year can file.
McConnell v USA is also less broad than the multiple-plaintiff lawsuits envisioned when the marriages in Massachusetts go to court.
This case is also different because the Baker-McConnell marriage happened before DOMA. The marriages in Massachusetts happened after DOMA.
McConnell v USA does not seek to overthrow the Defense of Marriage Act (DOMA) in its entirety. It only seeks a finding that DOMA does not apply in this one case.
The opposition: Heffelfinger
The players in the case at this level of adjudication, besides Baker and McConnell, are Tom Heffelfinger, the U.S. Attorney for Minnesota, and Judge Joan N. Ericksen, a U.S. District Judge for Minnesota.
Heffelfinger is believed to be a socially liberal Republican. A handful of gay activists including this reporter, remember meeting him at a fundraiser for gay rights in the home of his maternal cousin, Phil Willkie. Willkie published the James White Review, a national gay literary review out of Minneapolis, for many years.
In the early `80s, Willkie also championed a group of about eight men arrested in an infamous raid of a popular gay bathhouse. Heffelfinger and Willkie's great uncle and grandfather, respectively, Wendell Willkie, was a the 1940 Republican nominee for president against Frnaklin Delano Roosevelt.
The Heffelfingers are Pillsbury money, and someone in that clan married into the Cargill fortune during the '80s. The bottom line here is Heffelfinger doesn't necessarily work for a living. If he does not go along with the Republican extreme right and pisses off Bush and crowd, his grandkids will not go hungry.
The referee: Judge Joan N Ericksen
Since McConnell has asked for trial by judge rather by jury, Judge Joan N. Ericsen is the person who will have to be convinced the McConnell's 1971 marriage is valid and that DOMA does not apply here.
According to a publicly available resume, Judge Joan Ericksen (formerly Ericksen-Lancaster) was born in 1954. She entered undergraduate college at St. Olaf's in 1972, that is, while Baker and McConnell were in the lime-light for the first time.
Ericksen went to the University of Minnesota law school from 1977 through 1981 and graduated Juris Doctor cum laude. She undoubtedly had law professors who discussed gay marriage. Some of them may even have argued in class that the Minnesota Supreme Court "done Baker and McConnell wrong."
In spite of the fact that decisions by first level federal judges usually are not precedent setting, Professor Arthur Leonard of New York Law School and editor of Lesbian/Gay Law Notes tells us that if Judge Ericksen ruled that DOMA does not apply to marriages contracted before 1996, "and went on to find, in a well-reasoned discussion, that under the Internal Revenue Code, a validly contracted same-sex marriage should be recognized for federal tax purposes, then the opinion could be very helpful to other same-sex couples IF (Leonard's emphasis) the federal courts ultimately hold DOMA unconstitutional."
So what is the likelihood Judge Ericksen might pen such a gay-friendly order? Hard to say. She certainly has the education and intellect to write a well-reasoned opinion. No doubt about that.Another factor that might help is that Ericksen is a recent divorcee. Could she have some strong personal feelings about the very institution of marriage? I'll let the reader decide that.
On the darker side, Ericksen was appointed by George W. Bush just two years ago. That's not a lot of experience as it goes with federal judges.
In addition, there are some lacunae years in her resume that could have been spent doing campaign work for George W. Bush. Some observes say this is not uncommon in the background of our judges. Shhhsss. Don't tell the children. This reporter did not have time to dig any further in this direction.
Professor Leonard offered these words of possible encouragement when we were discussing Republican office holders in general: "All is not necessarily lost. Some Bush appointees have actually issued pro-gay opinions. For example, there is a Bush-appointed federal judge in Tennessee who issued a terrific opinion in support of a gay high school student group recently. So they are not all knee-jerk, anti-gay ideologues."
Leonard also notes importantly that: "Any judicial ruling involving claims for recognition asserted by same-sex couples is significant in light of the current situation."
Let's exit with this observation from many years ago (1971 or 1972) at a gay rights group discussion led by both Baker and McConnell at the University of Minnesota, Morris Campus. One of them said and I quote: "Minnesota is an ideal setting in which to test the waters for gay rights progress. It's a small state with all the elements that make up the larger nation."
Developments in McConnell v USA may just prove them right. Their lawsuit could not open in a more fortunate setting.
END
Baker and McConnell information: www.may-18-1970.org/Quest.pdf]