McConnell says previous suits do not bar this one
Claims Bush administration misses the point
By Tim Campbell
All rights reserved August 20, 2004
Email: timcampbellxyx@yahoo.com
Responding to the Bush administration’s motion to dismiss McConnell v USA, J. Michael McConnell claims that neither of his two previous lawsuits preclude him from filing the current complaint. He filed that one on May 18, 2004 the thirty-fourth anniversary of his very first application for a marriage license.
McConnell v USA asks for $793 in income tax refunds for the year 2000 based on an amendment of his declared tax return status from single, filing separately to married filing jointly. McConnell also asks for recognition of his right to over 1,000 other marital benefits promised by the federal government in 1971.
McConnell claims he has been legally married to Pat Lyn McConnell, generally known as Richard J. "Jack" Baker since September 3, 1971. Jack Baker is serving as McConnell’s attorney in this proceeding. In fact, McConnell claims his marriage contract was executed with minute attention to every aspect of legal requirements under Minnesota law at the time.
The two most important previous lawsuits the government claims preclude McConnell v USA are Baker v Nelson (1971) and McConnell v Nooner (1976). There were court decisions on several levels in both cases.
Baker v Nelson does not preclude this suit
McConnell claims Baker v Nelson rulings do not preclude the present lawsuit for three reasons: First, because it was about an application for a marriage license, not about an actual marriage. Second, because the government attorneys acknowledged the September 3, 1971 marriage was valid when they successfully petitioned the U.S. Supreme Court not to review the issue "for want of a substantial federal question." Third, because no court has ever declared that marriage invalid. And fourth, because the license for the September 3 wedding was obtained before the rulings in Baker v Nelson which came down October 15, 1971.
Consequently, McConnell’s response concludes: "Nothing in Baker invalidates any license previously issued or terminates any marriage contract." Furthermore, a judge for the U.S. District Court for Minnesota (Earl Larson) noted for the court record that Baker v Nelson "did not examine the precise marriage ceremony at issue here" in his rulings in McConnell v Nooner.
McConnell v Nooner does not preclude this suit
McConnell claims McConnell v Nooner rulings do not preclude him from filing the present lawsuit because Judge Larson ruled "federal courts are without jurisdiction to review, in an appellate capacity, state courts."
The Eighth District Court of Appeals likewise declined to address the precise marriage ceremony at issue here when McConnell v Nooner was appealed there, McConnell’s response notes.
Issues raised not precluded as stale
McConnell’s response also points out that the Bush administration’s motion to dismiss McConnell v USA fails or refuses to see the completely new issue in the present lawsuit. His response words that issue thusly: "(1) If no court…has terminated plaintiff’s lawfully licensed, fully executed contract of marriage, and (2) if no court has terminated the rights of property that vested on September 3, 1971, how can he (McConnell) be disqualified to …marital benefits?"
McConnell points out that it does not matter that same-sex couples were banned from marrying by Baker v Nelson on October 15, 1971. Nor does it matter that same-sex couples are disqualified from marital benefits since Congress passed the Defense of Marriage Act (DOMA) in 1996. The Minnesota marital statutes as they were in on September 3, 1971 promised McConnell’s benefits.
Now, the subtlety in Constitutional law regarding marriage at the core of McConnell v USA, or at least of it freshness, is a 1888 Supreme Court ruling. Maynard v Hill is a case about divorce and enduring property rights under the U.S. Constitution.
1888 Supreme Court ruling on marriage and property rights
That ruling reads as follows: "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature."
Having reasoned thus, the U.S. Supreme Court allowed Oregon Territory to write a divorce law, but with one caveat. The high court warned a different question would be presented, however, "if the act declaring the divorce should attempt to interfere with the rights of property vested in either party."
Herein lies the essence of McConnell v USA. McConnell claims by denying him the benefits promised by marriage in 1971, without first declaring the marriage invalid or without giving him his day in court, is against the due process clause of the U.S. Constitution.
The 1888 ruling also presents a definition of the essence of the marriage contract under the Constitution. The ruling will probably prove very useful in countering the government’s claim that the it has reason to control marriage because it involves the procreation and rearing of children.
The essence of marriage: primary relationships not breeding
The essence of marriage according to the Supreme Court is clearly to create one’s primary relationship, and clearly not to procreate and rear children. Ten to one Maynard and his wife had no children. That may have given the 1888 court some clarity that has been lacking in more recent courts threatened by gay marriage.
Why all the delays?
The government has requested several delays for this simple motion to dismiss. It says it needs time to consult with higher-ups in the Bush administration. The government may also have been waiting to see the outcome of the 4000 some odd gay marriages in San Francisco. It is now in. Currently, oral arguments are scheduled for September 23 in Minneapolis before Jonathan Lebedoff, Magistrate for Judge Joan Ericksen. Stay tuned.
Articles and photos on a variety of topics by Tim Campbell, former publisher and editor of the GLC Voice Newspaper published in Minneapolis from 1979 through 1992 for the gay community there.
Thursday, August 26, 2004
Govt moves to dismiss McConnell v USA
Bush lawyers claim Supreme Court has already declared barring same-sex marriage Constitutional
By Tim Campbell
All rights reserved August 21, 2004
Arguing to dismiss McConnell v USA, attorneys for the Bush administration claim "the U.S. Supreme Court has already held that a prohibition against same-sex marriage comports with the United States Constitution."
McConnell v USA is the lawsuit brought by J. Michael McConnell against the Bush administration and the Internal Revenue Service over McConnell’s right to file a joint income tax return with his male spouse, Pat Lyn McConnell better known as Richard "Jack" Baker. Baker is acting as McConnell’s attorney. Actually, McConnell is filing an amendment to his year 2000 filing in which he changes his claimed status from single to married.
The government’s motion to dismiss was filed July 28 in U.S. District Court for Minnesota. Oral arguments will be heard September 23 by Jonathan Lebedoff, Magistrate to Judge Joan N. Ericksen.
The government moves to dismiss McConnell v USA on arguments in four main categories: preclusion by McConnell's first filing as unmarried; preclusion by McConnell’s previous litigation; preemption by findings that the prohibition of same-sex marriage is Constitutional in McConnell’s own lawsuits; preemption by the Defense of Marriage Act (DOMA) passed in 1996.
Preclusion by McConnell's original income tax filing as single
The government's first and most simple reason for moving to dismiss McConnell v USA is that "By reporting his filing status as single, head of household, and neither married filing separately nor married filing jointly, plaintiff originally admitted that he was not married." To bolster that argument, the government quotes tax code which reads: "For purposes of this subtitle, an individual shall be considered a head of a household if, and only if, such individual is not marrat at the close of his taxable year...".
Preclusion by McConnell’s previous lawsuits
The government claims McConnell has already litigated whether he can file joint income tax returns based on his purported marriage to another male, whether same-sex marriage is permitted under Minnesota law, whether a prohibition of same-sex marriage comports with the United States Constitution, and even whether he has the right to relitigate these issues. McConnell lost all those lawsuits, notes the government.
Preemption by decisions on Constitutional issues in McConnell’s previous lawsuits.
The government bases it’s argument that laws against same-sex marriage are Constitutional on Baker v Nelson (Minn. 1971), in which Baker and McConnell argued they should be granted a marriage license under the Due Process Clause and the Equal Protection Clause of the U.S. Constitution. The Minnesota Supreme Court and the U.S. Court of Appeals found against Baker and McConnell. The Supreme Court refused to review that case "for want of a substantial federal question."
Baker v Nelson held that the Minnesota statute authorizing marriage does not authorize same-sex marriage so that same-sex marriage is prohibited. That decision also hold that such prohibition does not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
The government’s brief argues: "Baker definitively establishes that neither the Due Process Clause nor the Equal Protection clause bars the states from limiting marriage to one man and one woman. A fortiori, Baker definitively establishes that the federal government, in defining marriage for purposes of federal benefits statutes, may likewise incorporate the traditional opposite-sex definition."
Remark that Baker v Nelson involves Baker and McConnell’s May 18, 1970 application for a marriage license. It does not involve their actual marriage September 3, 1971 with a different license acquired in a different county over a year later, but before October 15 the decision of the Minnesota Supreme Court in in Baker v Nelson. That precise timing may prove critical.
Preemption by DOMA and previous anti-gay decisions
Finally, in case the Court does buy any of the preceding arguments, the government argues that McConnell is barred from joint income tax return savings by DOMA. It reuses Baker v Nelson to argue for DOMA’s own Constitutionality. It argues that DOMA does not impinge upon any fundamental rights, does not create any suspect classification, and does have a rational basis.
As regards fundamental rights, the government’s brief acknowledges that the right to marry qualifies as "fundamental" under Constitutional standards, it argues that the right to marry someone of the same sex is somehow not fundamental.
As regards creating "suspect classifications," the government argues "Under settled precedent, classifications based on sexual orientation are neither suspect nor quasi-suspect, and thus do not trigger heightened scrutiny." The "settled precedent" referred to consists of two cases, one in the Eighth Circuit Court in 1996 and one in Minnesota District Court in the year 2000.
As regards rational basis, the government argues "DOMA is rationally related to the legitimate government interest in encouraging the development of relationships optimal for procreation and childrearing." On this point, the brief cites the U.S. House Judiciary Committee: "The benefits and obligations of marriage are rooted in the inescapable fact that only two people, not three, only a man and a woman, can beget a child." Hence the government argues, "DOMA is rationally related to Congress’s plainly legitimate interests in encouraging the optimal social arrangements for procreation and childrearing."
So what say experts?
Arthur S. Leonard, editor of Lesbian and Gay News Notes and professor of law at New York Law University offered this comment after a brief consideration of the motion to dismiss: "They seem to be throwing every argument at you that they can, and hoping that one will stick."
Another observer knowledgeable in law and close to the case commented, "They were firing with buckshot but aiming in the wrong direction."
[Tim Campbell email: http://us.f601.mail.yahoo.com/ym/Compose?To=timcampbellxyx@yahoo.com]
By Tim Campbell
All rights reserved August 21, 2004
Arguing to dismiss McConnell v USA, attorneys for the Bush administration claim "the U.S. Supreme Court has already held that a prohibition against same-sex marriage comports with the United States Constitution."
McConnell v USA is the lawsuit brought by J. Michael McConnell against the Bush administration and the Internal Revenue Service over McConnell’s right to file a joint income tax return with his male spouse, Pat Lyn McConnell better known as Richard "Jack" Baker. Baker is acting as McConnell’s attorney. Actually, McConnell is filing an amendment to his year 2000 filing in which he changes his claimed status from single to married.
The government’s motion to dismiss was filed July 28 in U.S. District Court for Minnesota. Oral arguments will be heard September 23 by Jonathan Lebedoff, Magistrate to Judge Joan N. Ericksen.
The government moves to dismiss McConnell v USA on arguments in four main categories: preclusion by McConnell's first filing as unmarried; preclusion by McConnell’s previous litigation; preemption by findings that the prohibition of same-sex marriage is Constitutional in McConnell’s own lawsuits; preemption by the Defense of Marriage Act (DOMA) passed in 1996.
Preclusion by McConnell's original income tax filing as single
The government's first and most simple reason for moving to dismiss McConnell v USA is that "By reporting his filing status as single, head of household, and neither married filing separately nor married filing jointly, plaintiff originally admitted that he was not married." To bolster that argument, the government quotes tax code which reads: "For purposes of this subtitle, an individual shall be considered a head of a household if, and only if, such individual is not marrat at the close of his taxable year...".
Preclusion by McConnell’s previous lawsuits
The government claims McConnell has already litigated whether he can file joint income tax returns based on his purported marriage to another male, whether same-sex marriage is permitted under Minnesota law, whether a prohibition of same-sex marriage comports with the United States Constitution, and even whether he has the right to relitigate these issues. McConnell lost all those lawsuits, notes the government.
Preemption by decisions on Constitutional issues in McConnell’s previous lawsuits.
The government bases it’s argument that laws against same-sex marriage are Constitutional on Baker v Nelson (Minn. 1971), in which Baker and McConnell argued they should be granted a marriage license under the Due Process Clause and the Equal Protection Clause of the U.S. Constitution. The Minnesota Supreme Court and the U.S. Court of Appeals found against Baker and McConnell. The Supreme Court refused to review that case "for want of a substantial federal question."
Baker v Nelson held that the Minnesota statute authorizing marriage does not authorize same-sex marriage so that same-sex marriage is prohibited. That decision also hold that such prohibition does not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.
The government’s brief argues: "Baker definitively establishes that neither the Due Process Clause nor the Equal Protection clause bars the states from limiting marriage to one man and one woman. A fortiori, Baker definitively establishes that the federal government, in defining marriage for purposes of federal benefits statutes, may likewise incorporate the traditional opposite-sex definition."
Remark that Baker v Nelson involves Baker and McConnell’s May 18, 1970 application for a marriage license. It does not involve their actual marriage September 3, 1971 with a different license acquired in a different county over a year later, but before October 15 the decision of the Minnesota Supreme Court in in Baker v Nelson. That precise timing may prove critical.
Preemption by DOMA and previous anti-gay decisions
Finally, in case the Court does buy any of the preceding arguments, the government argues that McConnell is barred from joint income tax return savings by DOMA. It reuses Baker v Nelson to argue for DOMA’s own Constitutionality. It argues that DOMA does not impinge upon any fundamental rights, does not create any suspect classification, and does have a rational basis.
As regards fundamental rights, the government’s brief acknowledges that the right to marry qualifies as "fundamental" under Constitutional standards, it argues that the right to marry someone of the same sex is somehow not fundamental.
As regards creating "suspect classifications," the government argues "Under settled precedent, classifications based on sexual orientation are neither suspect nor quasi-suspect, and thus do not trigger heightened scrutiny." The "settled precedent" referred to consists of two cases, one in the Eighth Circuit Court in 1996 and one in Minnesota District Court in the year 2000.
As regards rational basis, the government argues "DOMA is rationally related to the legitimate government interest in encouraging the development of relationships optimal for procreation and childrearing." On this point, the brief cites the U.S. House Judiciary Committee: "The benefits and obligations of marriage are rooted in the inescapable fact that only two people, not three, only a man and a woman, can beget a child." Hence the government argues, "DOMA is rationally related to Congress’s plainly legitimate interests in encouraging the optimal social arrangements for procreation and childrearing."
So what say experts?
Arthur S. Leonard, editor of Lesbian and Gay News Notes and professor of law at New York Law University offered this comment after a brief consideration of the motion to dismiss: "They seem to be throwing every argument at you that they can, and hoping that one will stick."
Another observer knowledgeable in law and close to the case commented, "They were firing with buckshot but aiming in the wrong direction."
[Tim Campbell email: http://us.f601.mail.yahoo.com/ym/Compose?To=timcampbellxyx@yahoo.com]
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