Baker v. Nelson

Richard John Baker v. Gerald R. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), was a case in which the Minnesota Supreme Court decided that construing a marriage statute to restrict marriage licenses to persons of the opposite sex "does not offend" the U.S. Constitution. Baker appealed the decision, and on October 10, 1972, the U.S. Supreme Court dismissed the appeal "for want of a substantial federal question".[2]

Baker v. Nelson
CourtMinnesota Supreme Court
Full case nameRichard John Baker et al., Appellants, v. Gerald Nelson, Clerk of District Court, Fourth Judicial District, in Hennepin County, Respondent
DecidedOctober 15, 1971
Citation(s)291 Minn. 310, 191 N.W.2d 185 (1971)
Case history
Prior action(s)Plaintiff's claim dismissed
Appealed fromHennepin County
Holding
OPINION:[1] Denial of the statutory entitlement demanded by gay citizens to marry the adult of one's choice "does not offend the . . . United States Constitution".
Court membership
Chief judgeOscar Knutson
Case opinions
Decision byC. Donald Peterson
Majorityunanimous
ConcurrenceMartin A. Nelson, William P. Murphy, James C. Otis, Walter F. Rogosheske, Fallon Kelly
Laws applied
Minn.St. c. 517; U.S. Const. amends I, VIII, IX and XIV
Overruled by
Obergefell v. Hodges (2015)

Because the case came to the Supreme Court through mandatory appellate review (not certiorari), the dismissal constituted a decision on the merits and established Baker v. Nelson as precedent,[3] although the extent of its precedential effect had been subject to debate.[4] In May 2013, Minnesota legalized same-sex marriage and it took effect on August 1, 2013.[5] On June 26, 2015, the Supreme Court explicitly overruled Baker in Obergefell v. Hodges, making same-sex marriage legal nationwide.[6]

Facts and trial

On 18 May 1970, activists James Michael McConnell, librarian,[7] and Richard John Baker, law student on the Minneapolis campus[8] of the University of Minnesota,[9] applied for a marriage license in Minneapolis. Gerald Nelson, Clerk of District Court in Hennepin County, denied the request on the sole ground that the two were of the same sex. The couple filed suit in district court to force Nelson to issue the license.[10]

The couple first contended that their request for a marriage license was not forbidden.[11] If the court were to construe the statutes to require different-sex couples, however, Baker claimed such a reading would violate several provisions of the U.S. Constitution:[12]

The trial court dismissed the couple's claims and ordered the clerk not to issue the license.[13]

Appeal to the Minnesota Supreme Court

The couple appealed the district court's decision to the Minnesota Supreme Court. The Court heard oral argument in the case on September 21, 1971. During the oral argument, while Baker and McConnell's lawyer was presenting his case, Justice Fallon Kelly turned his chair around, thus literally turning his back on the attorney. The justices did not ask a single question during the oral argument to Baker and McConnell's lawyer or to the assistant county attorney who represented the clerk.[14]

In a brief opinion issued on October 15, 1971, authored by Justice C. Donald Peterson, the Minnesota Supreme Court unanimously affirmed the trial court's dismissal. Based on the common usage of the term "marriage" and gender-specific references elsewhere in the same chapter, the Court held that the statutes prohibited marriage between persons of the same sex.[15] This restriction, the Court reasoned, did not offend the Due Process Clause because procreation and child rearing were central to the constitutional protection given to marriage.[16]

With respect to the claim of an equal-protection violation, the Court found that childless marriages presented no more than a theoretical imperfection in the state's rationale for limiting marriage to different-sex couples. It found the plaintiffs' reliance on the U.S. Supreme Court's recent decision in Loving v. Virginia, finding an anti-miscegenation law unconstitutional, failed to provide a parallel: "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."[17]

The Court acknowledged that Justice Goldberg's concurrence in Griswold v. Connecticut, which argued that criminalizing the possession of contraceptives violated the right to marital privacy, found support for marital privacy partly in the Ninth Amendment, but the Court distinguished Griswold and found no authority for the Ninth Amendment being binding on the states.[18] The Court dismissed the plaintiffs' claims under the First and Eighth Amendments without discussion.[19]

Appeal to the U.S. Supreme Court

Baker and McConnell appealed the Minnesota court's opinion[1] to the U.S. Supreme Court. There, they claimed that the marriage statute,[11] as construed, implicated three rights: it abridged their fundamental right to marry under the Due Process Clause of the Fourteenth Amendment; discriminated based on gender, contrary to the Equal Protection Clause of the Fourteenth Amendment; and deprived them of privacy rights flowing from the Ninth Amendment to the United States Constitution.[20]

In his "Motion to Dismiss Appeal and Brief", the Hennepin County Attorney argued, correctly, that the marriage license issued previously[21] made this case moot.[22] On October 10, 1972, the U.S. Supreme Court responded with a one-sentence order: "The appeal is dismissed for want of a substantial federal question."[23][24]

In most cases presented to the U.S. Supreme Court, the Court's refusal to hear the case is not an endorsement of the decision below.[25] However, since this case came to the Court through mandatory appellate review,[note 1] the summary dismissal is a decision on the merits of the case.[3] As binding precedent, Baker prevented lower courts from coming to a contrary conclusion when presented with the precise issue the Court adjudicated in dismissing the case.[26]

The "moot" question suggested that perhaps the "precise issue" was not the right of citizens to marry the adult of one's choice.

Application of the Baker precedent

When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions.[27] The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:[28]

  • The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.[29]
  • The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court's decision.[30]
  • Of the issues presented, only those necessarily decided by the Court in dismissing the case control.[31]
  • Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.[32]

In recent years, most judges faced with claims like those in Baker have concluded that subsequent developments render Baker no longer authoritative. During the 2013 oral argument in Hollingsworth v. Perry, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg summarized her view of Baker: "The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don't think we can extract much in Baker v. Nelson."[33]

Following the Supreme Court's ruling in June 2013 in United States v. Windsor that found unconstitutional the provision of the Defense of Marriage Act that forbade federal government recognition of same-sex marriages, no U.S. Court of Appeals held that Baker controlled in a case challenging a state ban on same-sex marriage,[34] until November 6, 2014, when the Sixth Circuit Court of Appeals ruled that Baker precluded it from considering several such cases from Kentucky, Michigan, Ohio, and Tennessee.[35] The author of the opinion, Judge Jeffrey Sutton, argued that Windsor in no way contradicted Baker: "Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it." He wrote in DeBoer v. Snyder that:[36]

It matters not whether we think the decision [in Baker] was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions.... The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.

Conversely, Judge Martha Craig Daughtrey dissented from the court's decision that Baker was binding precedent. She wrote:

And although the argument [Baker precedent] was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker.

The precedential value of Baker was the subject of ongoing disputes in some other circuits. In the First Circuit, an October 2014 district court decision rejected a similar challenge to Puerto Rico's ban on same-sex marriage and said the First Circuit had "expressly acknowledged–a mere two years ago–that Baker remains binding precedent" in Massachusetts v. United States Department of Health and Human Services.[37][38] There were also dissenting opinions from the U.S. Courts of Appeal for the Fourth and Tenth Circuits in 2014 that found Baker controlling.[33]

Obergefell v. Hodges

On June 26, 2015, the U.S. Supreme Court overruled Baker in Obergefell v. Hodges. In that decision, Justice Anthony Kennedy wrote:[6]

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Plaintiffs
Main article: Jack Baker (activist)
Mike McConnell and Jack Baker (r), seen here in 2016

During the pendency of the case, the plaintiffs Michael McConnell and Jack Baker[39] obtained a license in Blue Earth County, Minnesota, and returned to Minneapolis to be married on 3 September 1971 by a minister from the Hennepin Avenue United Methodist Church.[40][41]

As of May 2015, both were retired and living as a couple in Minneapolis.[40] In a 2016 interview, Baker revealed that some legal battles were still on-going.[42] In 2018, Assistant Chief Judge Gregory Anderson ruled that "The marriage is declared to be in all respects valid."[43][44]

See also

Notes
  1. The U.S. Supreme Court was required to accept the appeal as a matter of right, a practice that the Supreme Court Case Selections Act ended in 1988.

References
  1. Title of decision, as posted by the court.
  2. 409 U.S. 810 (1972): Hennepin County had argued that the marriage license issued previously in Blue Earth County suggested that the "Questions Raised by This Appeal Are Moot."
    • George M. Scott, Hennepin County Attorney, "Appellee's Motion to Dismiss Appeal and Brief" in the Supreme Court of the United States, October Term, 1972, page 7.
    • See: McConnell Files, "America's First Gay Marriage" [binder #3, file #6], Tretter Collection in GLBT Studies, University of Minnesota Libraries.
  3. Project, "Developments in the Law: The Constitution and the Family". Harvard Law Review. 93 (6): 1156–1383, 1274. 1980. doi:10.2307/1340703. JSTOR 1340703. (discussing Baker's posture as precedent); see, e.g. Winnick, Pamela R. (1976). "The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda". Columbia Law Review. 76 (3): 508–533. doi:10.2307/1121552. JSTOR 1121552. a dismissal by the Supreme Court is an adjudication on the merits... a lower federal court must consider itself bound by the dismissal when a similar challenge comes before it
  4. Coyle, Marcia (August 23, 2010). "The first case, 40 years on". The National Law Journal.
  5. Davey, Monica (May 14, 2013). "Minnesota: Governor Signs Same-Sex Marriage Into Law". New York Times. Retrieved June 30, 2015.
  6. Obergefell v. Hodges, No. 14-556, 576 U.S. 644 (2015).
  7. The Board of Regents revoked an offer mailed by the University Librarian to McConnell.
    • 1967: McConnell insisted, on Baker's 25th Birthday, that he would accept Baker's offer if, and only if, the relationship would eventually be recognized as a "legal" marriage.
    • 10 July 1970: The Board accepted the recommendation of its Executive Committee "That the appointment of Mr. J. M. McConnell to the position of the Head of the Cataloging Division of the St. Paul Campus Library at the rank of Instructor not be approved on the grounds that his personal conduct, as represented in the public and University news media, is not consistent with the best interest of the University." See: Letter from James F. Hogg, Secretary, the Board of Regents; hand delivered to McConnell.
    • 1971: A federal court of appeals allowed such discrimination to continue.
    • 1972: The Hennepin County Library, a diverse and growing system of 26 facilities hired McConnell; he rose to the level of Coordinating Librarian before retiring 37 years later.
    • See: McConnell Files, "Full Equality, a diary" [volumes 5a-e], Tretter Collection in GLBT Studies, University of Minnesota Libraries
  8. A student body president known by different names; elected 1971, re-elected 1972.
    • March 1942: Richard John Baker, Certificate of Birth
    • September 1969: Jack Baker, name adopted to lead activists demanding gay equality
    • August 1971: Pat Lyn McConnell, married name; by Decree of Adoption
    • See: McConnell Files, "Full Equality, a diary" [volumes 6a-b], Tretter Collection in GLBT Studies, University of Minnesota Libraries
  9. 2012: University president Eric Kaler apologized to McConnell for the "reprehensible" treatment he endured from the Board of Regents in 1970. See: Anon., "News", University News Service, 22 June 2012
    • 2018: President Kaler affirmed his 2012 News statements. Action taken by our Board in 1970, he said, "is today worthy of deep criticism - of rebuke and censure." See: Email to Logan Chelmo, 27 June 2018; class of 2018, Shakopee High School, located in Shakopee, Minnesota
    • 6 June 2020: McConnell is enrolled as a member of the Heritage Society of the President's Club. See: Letter from xxx.
    • See: McConnell Files, "America's First Gay Marriage" [Binder #7, MEMORANDUM for the record], Tretter Collection in GLBT Studies, University of Minnesota Libraries
  10. Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3-4 (statement of the case); Court Won't Let Men Wed, N.Y. Times, Jan. 10, 1971 at 65.
  11. 1970: "Minnesota Statutes Annotated", West Publishing Co.
    • Chapter 517.01: Marriage a civil contract. "Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties, capable in law of contracting, is essential."
    • Chapter 517.03: Marriages prohibited. [The list does not include parties of the same gender.]
  12. Appellant's Jurisdictional Statement, Baker v. Nelson at 6 (how the federal questions were raised); Baker v. Nelson, 191 N.W.2d 185, 185-86 (Minn. 1971); The Legality of Homosexual Marriage, 82 Yale L.J. 573, 573-74 (1973).
  13. Baker, 191 N.W.2d at 185.
  14. William Eskridge and Darren Spedale, Gay Marriage: For Better or Worse? What We've Learned from the Evidence 22 (2006). From Google Books. Retrieved May 19, 2016.
  15. Baker, 191 N.W.2d at 185-86; Rhonda R. Rivera, Our Straight-Laced Judges, 30 Hastings L.J. 799, 874-75 (1979).
  16. Baker, 191 N.W.2d at 186-87; Rivera at 875; The Legality of Homosexual Marriage at 579 n.27.
  17. Baker, 191 N.W.2d at 187; Rivera at 875.
  18. Baker, 191 N.W.2d at 186-87; The Legality of Homosexual Marriage at 573-74 n.3.
  19. Baker, 191 N.W.2d at 186 n.2.
  20. Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3, available at DOMAwatch.org Archived 2007-09-28 at the Wayback Machine (accessed Oct. 28, 2009) (questions presented).
  21. Sources: Michael McConnell Files, "America's First Gay Marriage" [binder #7], Tretter Collection in GLBT Studies, U of M Libraries.
    • In Mankato; approved by the Clerk of District Court, Fifth Judicial District, which includes all of Blue Earth County.
    • "Daily Record", Mankato Free Press, 16 August 1971, p. ?
  22. Sources: Michael McConnell Files, "America's First Gay Marriage" (binder #3), Tretter Collection in GLBT Studies, U of M Libraries.
    • October Term, 1972: "Appellee's Motion to Dismiss Appeal and Brief" by George M. Scott, County Attorney
    • page 7: "Questions Raised by This Appeal Are Moot".
  23. Baker v. Nelson, 409 810 (U.S. 1972) ("The appeal is dismissed for want of a substantial federal question.").
  24. "Baker v. Nelson, Case # 71-1027". National Archives and Records Administration. October 10, 1972. Retrieved June 16, 2016.
  25. See, e.g. Briefing Glossary, Office of the Solicitor General website (see "Appellate jurisdiction" and "Certiorari"; accessed Oct. 25, 2009).
  26. See, e.g. Mandel v. Bradley, 432 U.S. 173, 176 (1977) ("[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.... They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions."); see generally Note, t. l. p, Jr (1978). "The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley". Virginia Law Review. 64 (1): 117–143. doi:10.2307/1072545. JSTOR 1072545.
  27. 'Robert L. Stern, et al., Supreme Court Practice 296 (6th ed. 1986) ("the Court has become increasingly concerned that these summary dispositions on the merits are uncertain guides to the lower courts bound to follow them and not infrequently create more confusion than certainty in the development of the law").
  28. E.g. William J. Schneier, Note, The Do's and Don'ts of Determining the Precedential Value of Supreme Court Summary Dispositions, 51 Brook. L. R. 945 (1985).
  29. Schneier at 957 (the Court has "limited the precedential value of summary dispositions to cases with legally indistinguishable facts."); Stern at § 4.30.
  30. Schneier at 960 ("a court must... examine the jurisdictional statement to determine which issues were directly presented to the Supreme Court..."); Stern at § 4.30.
  31. Schneier at 961 ("which of the issues presented to the Court were necessarily decided by the summary disposition...").
  32. Schneier at 961 ("determine whether there have been doctrinal developments that supersede the summarily adjudicated case").
  33. Barnes, Robert (August 17, 2014). "Supreme Court: Was gay marriage settled in 1972 case?". Washington Post. Retrieved October 3, 2014.
  34. Carpenter, Dale (October 7, 2014). "Symposium: Judge Sutton's trilemma". SCOTUSblog. Retrieved October 18, 2014.
  35. Geidner, Chris (November 6, 2014). "Federal Appeals Court Upholds Four States' Same-Sex Marriage Bans". BuzzFeed News. Retrieved November 6, 2014.
  36. "DeBoer v. Snyder, November 6, 2014" (PDF). Sixth Circuit Court of Appeals. Retrieved November 7, 2014.
  37. "Opinion and Order". U.S. District Court for Puerto Rico. Retrieved October 21, 2014.
  38. Denniston, Lyle (October 21, 2014). "Puerto Rico ban on same-sex marriage upheld". SCOTUSblog. Retrieved October 22, 2014.
  39. A law student on the Minneapolis campus of the University of Minnesota; student body president known by different names; elected 1971, re-elected 1972.
    • March 1942: Richard John Baker, Certificate of Birth
    • September 1969: Jack Baker, name adopted to lead activists demanding gay equality
    • August 1971: Pat Lyn McConnell, married name; by Decree of Adoption
    • See: McConnell Files, "Full Equality, a diary" [volumes 6a-b], Tretter Collection in GLBT Studies, University of Minnesota Libraries
  40. Eckholm, Erik (May 16, 2015). "The Same-Sex Couple Who Got a Marriage License in 1971". New York Times. Retrieved May 24, 2015.
  41. First Gay Wedding in Minnesota - Jack Baker & Mike McConnell, 1971 on YouTube
  42. "Interview: Minn. Couple Behind America's 1st Gay Marriage".
  43. Sources: Michael McConnell Files, "America's First Gay Marriage" (binder #4), Tretter Collection in GLBT Studies, U of M Libraries.
    • Fifth Judicial District, File #07-CV-16-4559;
      • 18 September 2018: CONCLUSIONS OF LAW by Assistant Chief Judge Gregory Anderson, at 4; available online from U of M Libraries.
      • . . . "The September 3, 1971 marriage of James Michael McConnell and Pat Lyn McConnell, a/k/a Richard John Baker, has never been dissolved or annulled by judicial decree and no grounds currently exist on which to invalidate the marriage."
      • "The marriage is declared to be in all respects valid".
  44. The marriage certificate is available online in Minnesota Official Marriage System (MOMS). Search for Blue Earth, [Both Applicants], Pat Lyn McConnell, 9/3/1971.
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