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CHAPTER 1
I. OPENING ARGUMENTS, 1970–98
THE FIRST MARRIAGE CASES, 1970–74
WILLIAM N. ESKRIDGE JR.
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William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School.
Born in 1942, James Michael McConnell grew up in Norman, Oklahoma, in a closely-knit mom-and-dad family with three sisters and an older brother. As early as second grade, Mike knew he was "different," and later he realized he was homosexual. In the late 1950s, while working as a cashier at his dad's barbershop, Mike developed crushes on the engineering and ROTC students at the University of Oklahoma (OU) who regularly needed their crew cuts updated. When Mike himself became a student at the university, he met and fell in love with Bob Gaylor, who was his partner for about four years. After they broke up, Mike was devastated but returned to the university, where he secured a bachelor's degree in library science.
Hailing from Chicago, Richard John Baker, also born in 1942, was the last of ten children. Before age six, he had lost both parents. Jack was enrolled in a Catholic boarding school, where he spent most of his childhood and where he, too, realized he had erotic feelings for other boys. In 1965, while serving in the U.S. Air Force and assigned to the Airman Education Commissioning Program at OU, Jack earned a degree in industrial engineering. His military career was cut short, however, when it was discovered he had previously accepted an invitation to share sex with an enlisted man, and had been exchanging letters with other gay men while on active duty. Afterward, Jack returned to Norman, Oklahoma.
Dominated by Oklahoma's Baptist culture, Norman was officially intolerant of homosexuality — but, as a college town, it hosted a thriving homosexual subculture. Among its stars was Mike McConnell, nicknamed the "Masked Mother" because of his supportive attitude toward his friends. Still recovering from his failed relationship, Mike ran into Jack at a "barn party" (a social event held in a barn) organized by a mutual friend on Halloween night, 1966. For Jack, it was love at first sight: the brilliant library science student with the incandescent smile was the soul mate he had been searching for.
Mike was not so sure. Even though the dashing, crew-cut veteran reminded him of the men he had crushed on in the 1950s, Mike took several months to realize Jack was his soul mate. As in all things, Jack was persistent. On March 10, 1967, Jack's twenty-fifth birthday, "Jack asked me to be his lover. I was now ready to state what I wanted as a commitment: love openly and not repeat the mistakes of previous relationships. I was in it for the long haul, whatever that took. I wanted marriage — not just 'secret' rings recognized by a circle of mostly closeted friends. Jack agreed to make it happen."
For that reason, Jack entered law school at the University of Minnesota in September 1969. Having earned a master's degree in library science and working as a librarian in a private college, Mike joined him there in April 1970 after the university offered him a job as head of cataloguing at its St. Paul campus. Most first-year law students spend the year competing for grades that will earn them top law firm jobs. Not Jack. As an ardent activist, he joined the campus group Fight Repression of Erotic Expression (FREE), which sought to liberate people from repressive regulations of sexual and gender-nonconformity. Under Jack's leadership, FREE successfully pressured the university to advance a new policy barring discrimination against lesbian and gay persons. Not forgetting his promise to Mike, Jack found time to research Minnesota marriage law, which explained how two "persons" could apply for a marriage license. Were two gay men not "persons"?
Jack brought Mike to religious services at the university's Newman Center Chapel. One Sunday, they asked the priest, Reverend William Hunt, "Do you feel that if two people give themselves in love to each other and want to grow together with mutual understanding, that Jesus would be open to such a union if the people were of the same sex?" Reverend Hunt said, "Yes, in my opinion, Christ would be open." Elated, the couple planned a religious ceremony. But they realized they needed a marriage license for the Reverend to legally marry them.
Accompanied by several colleagues from FREE, Jack Baker and Mike McConnell appeared at the Hennepin County Courthouse on May 18, 1970, to apply for a marriage license. Clerk of the Court Gerald Nelson had no idea what to do with this couple. On May 22, County Attorney George Scott advised Nelson that Minnesota law did not authorize a marriage license for a same-sex couple. The common law treated marriage as only pertaining to different-sex couples, and Minnesota's divorce and other marriage-related laws explicitly regulated only relations between a "husband" and a "wife." To approve the license, Scott concluded, "would be to result in an undermining or destruction of the entire legal concept of our family structure in all areas of law."
Most Minnesotans agreed with Scott. Only a handful of Americans could even conceive of, much less endorse, marriage between two men in 1970. Most devout Catholics, fundamentalist Protestants, and orthodox Jews found homosexual marriage an affront to their religious beliefs because they understood the Bible as promoting marriage as the socially valuable institution in which procreative sex serves God's purposes for humankind. Coming from a different point of view, many radical feminists and gay liberationists were highly critical of marriage of any kind. Why should lesbians and gay men join an essentially patriarchal, heterosexist institution? Even the leading progressive organizations, such as the national ACLU and the Kinsey Institute (both of which declined Baker and McConnell's requests for help on their petition), felt the idea of gay marriage was not a viable civil rights issue in 1970–72.
Some of Baker and McConnell's close gay friends were fearful: "I must say, unfortunately, that I wouldn't fight with or for you in person or otherwise publicly because I value my family, friends (gay and straight), job, and happiness far above some man-made laws, which in the end are meaningless." Indeed, the decision to seek a marriage license was costly to this first couple in many ways. The Baker family was bitterly divided when Jack told them, at Thanksgiving dinner, that he and Mike planned to get married.
Over objections from its library administrators, the University Board of Regents vetoed Mike McConnell's job offer. Although the university's librarians needed McConnell's services to update their obsolete cataloguing system, the board recoiled from the publicity surrounding the marriage lawsuit. And though the state was penalizing McConnell for exercising his First Amendment rights to speak and petition the government, federal appellate judges justified this censorship as a reasonable response to his alleged effort "to foist tacit approval of this socially repugnant concept [equal treatment of 'homosexuals'] upon his employer."
None of this deterred McConnell and Baker from pursuing civil marriage. In December 1970, with the assistance of the local ACLU, they filed a lawsuit challenging the discrimination on both statutory and constitutional grounds. Trial judges summarily dismissed the complaint in Baker v. Nelson, the Minnesota Supreme Court affirmed with little discussion, and the U.S. Supreme Court dismissed their appeal for lack of a "substantial federal question." Notwithstanding these rebuffs, the plucky couple did secure a marriage license from Blue Earth County, Minnesota, on August 16, 1971. The county clerk did not realize that McConnell and Baker (under a legally changed name) were a same-sex couple.
Reverend Roger Lynn performed their marriage ceremony on September 3, 1971, where Mike and Jack exchanged gold wedding rings designed by their friend Terry Vanderplas. When placed side by side, the elegant rings spell out "Jack / Loves / Mike." Local officials not only refused to recognize this marriage, but even threatened the minister and the couple with criminal prosecution for marriage fraud.
So why did Baker and McConnell persist in this quest for marriage recognition? They felt a profound romantic and personal connection just like the ideal marriage, such as the loving relationships their own parents had enjoyed. Jack and Mike were personally indignant that they should be treated any differently than childless straight couples. (Like many such couples, they sought to adopt a child in 1974, but their petition was stonewalled because their relationship was not properly gendered.) Jack observed that his and Mike's commitment was more robust than that of some of his own siblings' marriages.
Schooled in the NAACP's inspiring campaign against racial discrimination, the generation that came of age in the 1960s was hostile to all forms of arbitrary status-based treatment. Indeed, Baker, McConnell, and their lawyer and former roommate, Michael Wetherbee, compared discrimination based on sexual orientation to that based on race and illegitimacy, two status-based categories widely considered arbitrary grounds for state discrimination. A year after Baker and McConnell's Hennepin County application, two African American lesbians, Donna Burkett and Mononia Evans, applied for a marriage license in Milwaukee County, Wisconsin. Like Baker and McConnell, this couple maintained that theirs was a matter of "civil rights," requiring strictly equal treatment, and they filed a federal lawsuit to enforce their constitutional civil rights. Also like Baker and McConnell, Burkett and Evans had a religious wedding ceremony, with Burkett dressed in a tuxedo and Evans in a wedding gown.
In addition, Baker and McConnell believed that the exclusion of same- sex couples from civil marriage was discrimination because of sex, another fishy basis for state exclusions. Not only was the classification sex- based — Baker's marriage application was denied solely because of the sex of his partner, McConnell — but the ideology undergirding the exclusion was sexism and patriarchy. By defining marriage only in terms of procreation, the state was insisting upon a definition that was long associated with gendered roles, where husbands worked outside the home and wives raised the children. The sex discrimination argument was also made, prominently, by John Singer and Paul Barwick, a Seattle, Washington, couple whose application for a marriage license was made and declined on September 10, 1971. Like Baker and McConnell, they sued in state court. Even though the Washington Constitution contained an Equal Rights Amendment barring sex discrimination, the state appellate judges ruled that its intended protections did not extend to "homosexuals."
There was also a strategic political element to the Baker and McConnell marriage license application. Both men had "come out" in the 1960s. Running as an openly gay candidate, and with a much-admired poster displaying the air force veteran in women's dress shoes, Jack Baker won consecutive terms as the student body president at the University of Minnesota in 1971 and 1972. His and Mike's view was that coming out in public was not only essential for the mental and emotional health of any lesbian or gay person, but was an important strategy for advancing the cause of equal treatment more generally. To this day, Mike is adamant that almost anyone of goodwill can support complete equality, including marriage equality, if only that person can listen to and learn about gay people.
Accordingly, Baker and McConnell held hands on campus, kissed each other in public, danced together at the Barrister's Ball, were featured in a widely read Look magazine article on "the homosexual couple," and made their application for a marriage license into a public event. In these and other performances, Baker and McConnell sought "confrontation," in order to "[m]ake our presence felt by the straight society, make them face the issue" of fair treatment of gays. In 1970, there were few actions that were more confrontational than a "homosexual" couple's demanding the right to civil marriage, an institution that the Minnesota Supreme Court traced back to the Genesis account of Adam and Eve.
In-your-face gay pride and gay-is-good activism were critically important motivations for other early marriage equality lawsuits, including the first lawsuit to follow Baker and McConnell's application. On June 6, 1970, Marjorie (Margie) Jones and Tracy Knight applied for a marriage license in Jefferson County, Kentucky (Louisville): "The boys had just applied, and we couldn't let the boys get ahead of us," cracked Jones. Like Singer and Barwick, Jones, a twice-divorced mother of three children, and Knight were not completely committed to a lifetime together. Instead, these lesbians were "fighters" motivated by a strategy of confronting both straights and closeted homosexuals with lesbian and gay pride. Like "the boys," Jones and Knight were rebuffed by the legal process: the Jefferson County clerk denied their marriage application, the Circuit Court dismissed their lawsuit challenging the constitutionality of the discrimination (comparing their "perverted lust" with "thievery and chicanery"), and the Kentucky Court of Appeals affirmed in a dismissive opinion.
Although judges rejected every one of these early lawsuits, they were harbingers for the future — and not just because they put the issue of marriage equality on the nation's public law agenda. Starting with their trial court memorandum and continuing through their jurisdictional statement to the U.S. Supreme Court, Mike Wetherbee, assisted by Jack Baker, laid out the case for marriage for same-sex couples that anticipates the arguments still made today. Their central claim was that the state was denying two gay men a fundamental right to marry, with all the legal rights and duties associated with it, for reasons that were arbitrary, whether that reason be the sex of the partners or their sexual orientation. The plaintiffs challenged the state to explain why all the benefits and duties of marriage are routinely extended to childless different-sex couples, but not to same-sex couples, many of whom are raising children. There is no policy reason, and religion-based morality is not a sufficient justification for the government.
This exclusion is a core violation of both the Due Process Clause (protecting liberty and the right to marry) and the Equal Protection Clause of the Fourteenth Amendment, similar to the analysis that invalidated different-race marriage bans in Loving v. Virginia. "In a sense, the analysis presented here involves a mixing of both due process and equal protection doctrines. As applied to the government disability at issue in this case, however, they tend to merge."
Likewise, the central argument made by supporters of traditional marriage was made by County Attorney George Scott and David Mikkelson, the assistant representing the government in Baker v. Nelson. They contended that including same-sex couples would be a fundamental redefinition of marriage. Because marriage has universally been limited to one man and one woman throughout biblical and Western history, every state's family law was organized around that precept. This traditional understanding of marriage has proven workable — and changing it would open a Pandora's box of unpredictable consequences. Judges lack the legitimacy and the expertise to figure out or manage these consequences, and so constitutional litigation is not the way to redefine the longstanding, treasured institution.
Almost forty-five years after Baker and McConnell's application for a marriage license, the Supreme Court, on April 28, 2015, heard argument in Obergefell v. Hodges, the Marriage Equality Cases. Led by the chief justice, the Court viewed the redefinition of marriage argument as the core defense of the traditional exclusion of same-sex couples. How can unelected judges legitimately redefine an institution that no culture in world history had understood to include same-sex couples?
Ironically, no one on argument day articulated the response to the redefinition point as well as Jack Baker, Mike McConnell, and Mike Wetherbee did forty-five years ago. It is the state (and not "the gays") that has redefined marriage, to meet the needs of adults who love one another. In a society where marriage licenses are routinely given to elderly couples, to couples choosing contraception, and to couples preferring to adopt children, same-sex couples are similarly situated and, hence, ought to be treated the same. Indeed, the analogy is closer still, for "[t]here is nothing in the nature of single-sex marriage that precludes procreation and child rearing," as hundreds of thousands of same-sex couples have demonstrated over the years.
(Continues…)
Excerpted from "Love Unites Us"
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