California decision side steps 1971 Baker v Nelson ruling
Historical case involved application for a marriage license by same-sex couple from Minneapolis
By Tim Campbell
Copyright September 1, 2004
The California Supreme Court debated thoroughly then side-stepped a 1971 U.S. Supreme Court decision involving Minneapolis residents Jack Baker and Mike McConnell when it ruled that San Francisco officials overstepped their authority when they issued over 4,000 marriage licenses to same-sex couples earlier this year.
Baker and McConnell applied for a marriage license May 18, 1970 in Minneapolis. A court clerk refused to issue them one. The Minnesota Supreme Court upheld that clerk’s refusal. Subsequently, the U.S. Supreme Court summarily refused to review that case "for want of a substantial federal question."
Lavender Magazine is currently following step by step, a new lawsuit filed by Baker and McConnell to gain recognition of marital rights they acquired on September 3, 1971 when they were married with a license issued to J. Michael McConnell and Pat Lyn McConnell.
After Baker v Nelson, how dare you, San Francisco!
The California high court reasoned in part that the decision in Baker v Nelson barred San Francisco officials from claiming they assumed "reasonably" that laws against same-sex marriage were unConstitutional.
The California court insists, however, that it is not ruling on the constitutionality of laws prohibiting same-sex marriage, only on whether San Francisco officials exceeded their rights by performing same-sex marriage.
The essence of the California decision is that "Ehen the statutory requirements [for marriage] have not been met, the county clerk and the county recorder are not granted any discretion under the statutes to issue a marriage license or register a certificate of registry of marriage."
Echoes of Minneapolis, 1970?
Interestingly, the legal battle for gay marriage in America began May 18, 1970 when a Minnesota clerk named Nelson refused to issue a license to a same-sex couple. To this day, that couple claims to have met all the written statutory requirements for marriage in Minnesota.
The Minnesota marriage statute at the time said nothing about same sex marriage. Eventually, the Minnesota Supreme Court found Nelson’s refusal to issue them a license, following his instinct about what the marriage law should forbid, legally permissible. Subsequently, the U.S. Supreme Court summarily dismissed the Baker v Nelson "for want of a substantial federal question."
The California high court quoted an earlier court to justifying the core of its legal decision. "A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists." (Underscoring added.)
What San Francisco "could have done" according to high court.
Instead of using mass same-sex marriages to force the issue of Constitutionality on the courts, the California high court suggests a remedy. "If the local officials Eelieved the state’s current marriage statutes are unconstitutional and should be tested in court, they could have denied a same-sex couple’s request for a marriage license and advised the couple to challenge the denial in superior court."
Apparently, the California court does not see the irony of its own conflicting statements. First, it argues in one place that Baker v Nelson should have forewarned San Francisco against performing same-sex marriages. Baker v Nelson says states can refuse to license same-sex marriages.
Later, it recommends someone in San Francisco could have brought another suit like Baker v Nelson.
Baker v Nelson debated then cast aside
Baker v Nelson plays a crucial role in the arguments in this case from both sides.
The California Attorney General argues that the summary refusal of the U.S. Supreme Court to review Baker v Nelson "definitively establishes that, under current federal law,a statute limiting marriage to a man and a woman does not violate the federal Constitution."
San Francisco argues, on the contrary, that "when there have been subsequent doctrinal developments in the United States Supreme Court that undermine the holding in a summary dismissal, the lower courts are not bound to follow the summary dismissal as controlling authority."
San Francisco argues further that there have been precisely such subsequent doctrinal developments in the Supreme Court, particularly its ruling that sodomy laws may not discriminate against people on the basis of their gender or sexual orientation.
The California Supreme Court avoids, or claims to avoid this problem through its ruling that a reasonable official could find the current California marriage statutes valid.
Baker and McConnell’s current lawsuit: McConnell v USA
Naturally, Baker and McConnell claim that state of federal laws passed since September 3, 1971 are not relevant to their current lawsuit. Nor are court decisions rendered after that date, according to America’s first gay married couple.
Baker and McConnell admit that they have already lost their day in court (due process) over their first application for a marriage license. Their current lawsuit, McConnell v USA, is about a different scenario. After being turned down in Minneapolis, Baker and McConnell applied for a marriage license in Mankato, Minnesota. They got that license and were subsequently married by an authorized minister. They claim they have never had their day in court over that marriage.
Furthermore, Baker-McConnell applied for and got this marriage license a full month prior to the Supreme Court decision in Baker v Nelson which says states can prohibit same-sex marriage. Baker v Nelson may or may not be ruling now. On September 3, 1971 it did not yet exist.
California Supreme Court did not rule on same-sex marriage
Throughout this long decision (over 100 pages), the California Supreme Court insists it is not ruling on the constitutionality of laws against same-sex marriage. However, it does rule without blushing that "a reasonable official" could believe that laws like DOMA and the California statute banning same-sex marriage are constitutional.
"Amazing how reasonable prejudice seems to those still stuck in it!" commented Mlle Liberty, perhaps the oldest living drag queen still to be found fully clothed and live on the Internet. Where is Sister BoomBoom now that San Francisco really needs her?
1024 words
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.
Wednesday, October 13, 2004
25th Anniversary of GLC Voice
The birthing of a gay newspaper for the Twin Cities
Funny money, new technologies and a lot of sacrifice went into this breached birth
By Tim Campbell
Copyright September 28, 2004
(Scheduled for publication in Lavender in late October)
This fall, the Twin Cities celebrates twenty-five years having a gay newspaper.
Actually, at times over that period Minneapolis and St. Paul have boasted two or three or four gay and lesbian publications. Lavender Magazine thought this would be an apropos moment to publish some of my memories of the early years of the gay press and the GLC Voice newspaper which I published from November, 1979 through April of 1992. So sit back for a trip down memory lane-as I recall it.
The GLC Voice, a publication for gays, lesbians and civilized others grew directly out of two aborted efforts to start a gay newspaper here in the summer of 1979.
First there was the Northland Companion. It was published by Leonard Richards and edited by Bruce Brockway. Brockway, then in his late twenties and hot as a pistol, was the real driving force behind the Northland Companion.
Richards supplied the funds, perhaps from some counterfeit bills he and Brockway printed for an anarchist protest of all government activities. They were arrested dumping $100 bills off the balcony in the then spanking new Crystal Court at Nicollet and 7th Street. It was never perfectly clear to me that Richards was himself gay, just a civil libertarian. Still, I suspected he had a crush on Brockway. Some years later, Richards was convicted of hiring someone to murder first his sister then his lawyer.
Richards and Brockway only put out two issues of the Northland Companion before calling it quits. Maybe May and June 1979.
Brockway then started his own publication called Positively Gay. This was pre-AIDS and "positively gay" was meant to be a counterpoint to the negative image of gays allegedly projected by drag queens, murder victims, and angry gay activists like myself. "Gay" and "angry" were considered oxymorons until AIDS came along.
Positively Gay was loaded with stories from other sources like the San Francisco Examiner and the Advocate. I particularly remember the picture of burning squad cars in San Francisco after the "White Night Riots." I also remember stories about this new "gay cancer" that seemed to be hitting New York, San Francisco and Los Angeles.
After putting out a couple of issues, Brockway ran out of source materials and developed a colossal case of writer’s block. He came running to yours truly and offered me $500 a month to edit Positively Gay for him. I accepted. Together, we put out issues in July, August, September and October. Brockway quickly ran out of credit with his typesetter and printer. He was never able to pay me a dime.
The night before the November issue was due to go to the printer, Brockway told me how broke he was and offered to give me the newspaper in exchange for what he owed me. He had one condition--he wanted to keep the name "Positively Gay." Again, I agreed.
At that point, I was broke too. So I went to the Gay E0s and asked "Big Al" Cohen, then owner of the restaurant and bar, to buy a full page add and pay me in advance. Cohen hesitated at first saying: "Advertise for gay customers? That’s loony. I don’t have a gay bar on purpose. I’d make more money with a straight bar. You guys just came and took over my business."
I countered that I intended to put copies of the newspaper on the University of Minnesota campus and that one new student who learned where the gay bar was located a year earlier than he might otherwise, would pay for the ad-a mere $300-before the year was out. Big Al bought my argument and the ad. Once the Gay E0s was in, the other gay bars followed quickly.
The first big story for the GLVoice newspaper was the 1979 March on Washington for Gay and Lesbian Rights. It may have occurred October 11 and I think our coverage followed in the November issue. That issue carried two logos: Positively Gay and the GLC Voice.
During the first months the GLC Voice came out, Brockway typed most of our copy, wrote a few articles and editorials, and sold a few ads. This was, however, not something he relished. Instead, Brockway would nag Leonard Richards until he dropped by the office with a few crisp $100 bills to tide the GLC Voice through one financial crisis or another. To my surprise, none of them ever bounced.
Brockway died of AIDS in the spring of 1984. But for his association with Richards, the AIDS unit at the University of Minnesota Hospital would be named in his honor.
The GLC Voice was saved by other benefactors also, at various moments. Phil Willkie, Rebecca Rand, and a veterinarian out in Mendota Heights were often there to help.
But it was technology that really saved the life of the GLC Voice. In 1981 and 1982, home computers and the Hewlett Packard Laser Jet III with scalable type fonts hit the market for about $1500.00 each. The Voice was able to buy both. From that point on, we were able to keyboard and print out all the text and headlines for the newspaper in house. This cut production costs way down. I actually got a salary a few times.
Once way back about the time Equal Time came into being, a lesbian I was interviewing for some staff position asked me, "Doesn’t the GLC Voice have some kind of mission statement?"
"Sure!" I responded. "To come out-and on deadline." That we did for fourteen years.
The GLC Voice outlived Equal time. By then, the Twin Cities boasted four starving gay and lesbian publications. I closed it down in the interest of continued eating and with a sense of "mission accomplished."
You see, I also calculated the GLC Voice had generated roughly $1,000,000 in total revenues, all of which I poured back into giving the Twin Cities gay and lesbian news. Of that, I am very proud.
[Tim Campbell can be emailed at timcampbellxyx@yahoo.com]
1010 words
Funny money, new technologies and a lot of sacrifice went into this breached birth
By Tim Campbell
Copyright September 28, 2004
(Scheduled for publication in Lavender in late October)
This fall, the Twin Cities celebrates twenty-five years having a gay newspaper.
Actually, at times over that period Minneapolis and St. Paul have boasted two or three or four gay and lesbian publications. Lavender Magazine thought this would be an apropos moment to publish some of my memories of the early years of the gay press and the GLC Voice newspaper which I published from November, 1979 through April of 1992. So sit back for a trip down memory lane-as I recall it.
The GLC Voice, a publication for gays, lesbians and civilized others grew directly out of two aborted efforts to start a gay newspaper here in the summer of 1979.
First there was the Northland Companion. It was published by Leonard Richards and edited by Bruce Brockway. Brockway, then in his late twenties and hot as a pistol, was the real driving force behind the Northland Companion.
Richards supplied the funds, perhaps from some counterfeit bills he and Brockway printed for an anarchist protest of all government activities. They were arrested dumping $100 bills off the balcony in the then spanking new Crystal Court at Nicollet and 7th Street. It was never perfectly clear to me that Richards was himself gay, just a civil libertarian. Still, I suspected he had a crush on Brockway. Some years later, Richards was convicted of hiring someone to murder first his sister then his lawyer.
Richards and Brockway only put out two issues of the Northland Companion before calling it quits. Maybe May and June 1979.
Brockway then started his own publication called Positively Gay. This was pre-AIDS and "positively gay" was meant to be a counterpoint to the negative image of gays allegedly projected by drag queens, murder victims, and angry gay activists like myself. "Gay" and "angry" were considered oxymorons until AIDS came along.
Positively Gay was loaded with stories from other sources like the San Francisco Examiner and the Advocate. I particularly remember the picture of burning squad cars in San Francisco after the "White Night Riots." I also remember stories about this new "gay cancer" that seemed to be hitting New York, San Francisco and Los Angeles.
After putting out a couple of issues, Brockway ran out of source materials and developed a colossal case of writer’s block. He came running to yours truly and offered me $500 a month to edit Positively Gay for him. I accepted. Together, we put out issues in July, August, September and October. Brockway quickly ran out of credit with his typesetter and printer. He was never able to pay me a dime.
The night before the November issue was due to go to the printer, Brockway told me how broke he was and offered to give me the newspaper in exchange for what he owed me. He had one condition--he wanted to keep the name "Positively Gay." Again, I agreed.
At that point, I was broke too. So I went to the Gay E0s and asked "Big Al" Cohen, then owner of the restaurant and bar, to buy a full page add and pay me in advance. Cohen hesitated at first saying: "Advertise for gay customers? That’s loony. I don’t have a gay bar on purpose. I’d make more money with a straight bar. You guys just came and took over my business."
I countered that I intended to put copies of the newspaper on the University of Minnesota campus and that one new student who learned where the gay bar was located a year earlier than he might otherwise, would pay for the ad-a mere $300-before the year was out. Big Al bought my argument and the ad. Once the Gay E0s was in, the other gay bars followed quickly.
The first big story for the GLVoice newspaper was the 1979 March on Washington for Gay and Lesbian Rights. It may have occurred October 11 and I think our coverage followed in the November issue. That issue carried two logos: Positively Gay and the GLC Voice.
During the first months the GLC Voice came out, Brockway typed most of our copy, wrote a few articles and editorials, and sold a few ads. This was, however, not something he relished. Instead, Brockway would nag Leonard Richards until he dropped by the office with a few crisp $100 bills to tide the GLC Voice through one financial crisis or another. To my surprise, none of them ever bounced.
Brockway died of AIDS in the spring of 1984. But for his association with Richards, the AIDS unit at the University of Minnesota Hospital would be named in his honor.
The GLC Voice was saved by other benefactors also, at various moments. Phil Willkie, Rebecca Rand, and a veterinarian out in Mendota Heights were often there to help.
But it was technology that really saved the life of the GLC Voice. In 1981 and 1982, home computers and the Hewlett Packard Laser Jet III with scalable type fonts hit the market for about $1500.00 each. The Voice was able to buy both. From that point on, we were able to keyboard and print out all the text and headlines for the newspaper in house. This cut production costs way down. I actually got a salary a few times.
Once way back about the time Equal Time came into being, a lesbian I was interviewing for some staff position asked me, "Doesn’t the GLC Voice have some kind of mission statement?"
"Sure!" I responded. "To come out-and on deadline." That we did for fourteen years.
The GLC Voice outlived Equal time. By then, the Twin Cities boasted four starving gay and lesbian publications. I closed it down in the interest of continued eating and with a sense of "mission accomplished."
You see, I also calculated the GLC Voice had generated roughly $1,000,000 in total revenues, all of which I poured back into giving the Twin Cities gay and lesbian news. Of that, I am very proud.
[Tim Campbell can be emailed at timcampbellxyx@yahoo.com]
1010 words
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