McConnell responds to motion to dismiss

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.