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 United States 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".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.
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, although the extent of its precedential effect had been subject to debate. In May 2013, Minnesota legalized same-sex marriage and it took effect on August 1, 2013. On June 26, 2015, the Supreme Court explicitly overruled Baker in Obergefell v. Hodges.Obergefell v. Hodges, No. 14-556, 576 U.S. 644 (2015).
Facts and trial On 18 May 1970, activists James Michael McConnell, librarian,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 and Richard John Baker, law student on the Minneapolis campusA 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 of the University of Minnesota,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 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.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.
The couple first contended that their request for a marriage license was not forbidden.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.] 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: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). First Amendment (freedom of speech and of association), Eighth Amendment (cruel and unusual punishment), Ninth Amendment (unenumerated right to privacy), and Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause).
The trial court dismissed the couple's claims and ordered Nelson not to issue the license.
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.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.
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.Baker, 191 N.W.2d at 185-86; Rhonda R. Rivera, Our Straight-Laced Judges, 30 Hastings L.J. 799, 874-75 (1979). 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.Baker, 191 N.W.2d at 186-87; Rivera at 875; The Legality of Homosexual Marriage at 579 n.27.
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."Baker, 191 N.W.2d at 187; Rivera at 875.
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.Baker, 191 N.W.2d at 186-87; The Legality of Homosexual Marriage at 573-74 n.3. The Court dismissed the plaintiffs' claims under the First and Eighth Amendments without discussion.Baker, 191 N.W.2d at 186 n.2.
Appeal to the U.S. Supreme Court
Baker and McConnell appealed the Minnesota court's opinion to the U.S. Supreme Court. There, they claimed that the marriage statute, 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.Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3, available at DOMAwatch.org (accessed Oct. 28, 2009) (questions presented).
In his "Motion to Dismiss Appeal and Brief", the Hennepin County Attorney argued that the marriage license issued previouslySources: 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. ? made this case moot.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". 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."
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.See, e.g. Briefing Glossary, Office of the Solicitor General website (see "Appellate jurisdiction" and "Certiorari"; accessed Oct. 25, 2009). However, since this case came to the Court through mandatory appellate review,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. the summary dismissal is a decision on the merits of the case.Project, (discussing Bakers posture as precedent); see, e.g. 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.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,
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.'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"). The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions: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).