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Saturday, July 7, 2012

Jack Baker deserves mainstream press coverage after gay marriage ruling

Baker et al. v. Nelson, United States Reports, Volume 409, Cases Adjudged in the Supreme Court, October Term, 1972, Oct. 10, 1972 'dismissed for want of a substantial federal question.'

PHOTO: An original printed bound copy of first U.S. Supreme Court decision on same-sex marriage that was initiated by University of Minnesota law student Jack Baker in and his lover McConnell in 1970 after they noticed that Minnesota State law did not specify the gender of married couples and they got married: Baker et al. v. Nelson, Oct. 10, 1972, "United States Reports, Volume 409, Cases Adjudged in the Supreme Court, October Term, 1972," U.S. Government Printing Office, 1974, p. 810. At the time, and unlike today, state court cases that had a Constitutional rights question were automatically entitled to be reviewed by the U.S. Supreme Court, which often refuses to hear cases. However, the court frequently dodged this obligation by using the same one-sentence ruling that they used in this case, "Dismissed for want of a substantial federal question." Given how frequently the Court used this one-sentence ruling, it may or may not have been because the Court had actually given it enough thought to decide that marriage was a matter of State law and not Federal law. However, it is true that marriage was strictly a matter of state law until plural and interracial marriage cases were challenged and after anti-gay marriage groups had forced the passage of Federal laws, such as the Defense of Marriage Act, which by definition make marriage an issue of Federal law. Pending state gay marriage cases, which are about to be decided by the U.S. Supreme Court, have made this point to the Court. (See previous posts Baker v. Nelson 1972 Supreme Court order on gay marriage (7/22/09) and (NY Constitutional law Professor) Arthur S. Leonard on Baker v Nelson gay marriage case (7/28/09))

A blog post by Jack Baker, Esq., "DRAFT - Marriage Equality - a retrospective" from Jack Baker Now is the time," originally posted March 1, 2012 and edited July 4, 2012 appears to have been deleted by him again. Apparently, he is trying to finish and perfect his autobiography before posting it permanently. He is also similarly posting and deleting some other historical documents that he wants to donate to the University of Minnesota, which he hopes will issue an apology for rescinding a job offer to his lover of 42 years after the U of M Regents found out about their gay marriage in the early 1970s. If I were him, I would be editing it offline until I was ready to post, unless I wanted to have a history of my additions and changes over time. If that was my goal, then I would then handle it two different ways. First, I would use a series of blog posts that had link references to previous posts (and I would edit the older posts with links to the newer post). Second, I would also use a formal document or software revision control system, such as the one used by where previous versions of the article are kept by date and are easily accessible.

I was pleased to see Jack Baker had linked to some of my former posts Gay marriage pioneer Jack Baker starts blog (confirmed) (4/4/12) and Magnus Hirschfeld, Jack Baker, University of Minnesota and Oregon State University gay connection (1/21/2012). Baker also quoted a previous online article that I wrote for the famous gay rights activist Jack Nichols's newspaper: "Jack Baker & Michael McConnell: Lunatics or Geniuses?" published June 21, 2004. My thesis is based on the fact that gay marriage activism was rejected by early gay activists who were mostly interested in sexual freedom and gay liberation. I argued that Jack Baker was a genius to see that gay marriage would become the litmus test for gay equality decades later because nearly all other gay activists angrily dismissed gay marriage as being contrary to the goals of gay liberation and even mainstream gay organizations worked against it back then.

Below are my comments and notes on Jack's latest version of his autobiography:

  • Jack Baker was born March 10, 1942 - Jack says he was motivated by the leadership of President John F. Kennedy and I believe him having heard JFK. However, he was only 18 years old when he claims to have voted for John F. Kennedy, which would have been in the fall of 1960, but I recall the legal voting age at that time in Minnesota was 21 and it did not change to age 18 until the McGovern vs. Nixon Presidential election of 1972. See "Twenty-sixth Amendment to the United States Constitution," From Wikipedia, the free encyclopedia that says it limited the minimum voting age to 18. It was adopted in response to student activism against the Vietnam War and to partially overrule the Supreme Court's decision in Oregon v. Mitchell. It was adopted on July 1, 1971.
  • Michael McConnell was born May 19, 1942 and was married to Jack Baker on May 18, 1970, a date Jack says was picked so the news coverage would be the next day for a 28th birthday present to his husband.
  • Jack Baker notes how his gay marriage activism has become the center of gay rights activism today. However, the way he words it, the time frame is unclear. An important point I made in my essay "Jack Baker & Michael McConnell: Lunatics or Geniuses?" is that virtually all gay people in the 1970's were focused on "sexual freedom" and "gay liberation" and they viewed marriage as being an archaic institution used to oppress women. Ironically, the pre-Stonewall homophile activist, W. Dorr Legg, was a conservative who discussed the meaning of gay marriage in an early homophile publication. (See my previous posts OSU W. Dorr Legg homosexual marriage 1953 vs. CA Prop 8 2010 (8/22/10), Gay free speech victory 50th anniversary (1/18/08))
  • Jack Baker was introduced to Michael McConnell at the University of Oklahoma as an officer cadet in the Airman Education commissioning program. He was released from active duty in 1966 and returned to Norman, Oklahoma on his 24th birthday.
  • After military service, Jack Baker worked as an engineer (I would love to know for what company and what he did) in Lawrence, Kansas and Michael McConnell worked in a Kansas City, Missouri college library.
  • Jack Baker started Law School in Sept. 1969 (I always loved that year! The summer of love occurred that year.)
  • Nov. 1, 1969 the FREE group (Fight Repression of Erotic Freedom) was officially charted and Jack Baker was elected President. Jack notes that a faculty member had already been recruited to sponsor the group before he arrived.
  • Michael McConnell was eventually hired by the Hennepin County Library system of 41 libraries (Minneapolis, Minnesota is located in this County)
  • when a lower Minnesota Court the marriage clerk's denial of the marriage license application of Jack Baker and Michael McConnell, Jack says that the Legal Aid Clinic at his law school refused to help and Law School Dean William B. Lockhart, who had published a book on constitutional law, told Baker privately that gay marriage was the one issue that should not be raised in court. It is not clear if this was because he was anti-gay or if it was well meaning advice that the timing of constitutional law cases are important if you want to win. I've talked to other constitutional scholars who criticized Baker for risking setting a bad precedent other courts would be forced to follow. Of course, this concern proved to be moot because the decision in this case was largely ignored or did not cause any other future decisions to be decisively swayed against gay marriage.
  • Jack says the Minnesota Chief Justice Oscar R. Knutson (I went to school with his child) circulated a proposed Order of the Court denying Jack Baker's formal request to be admitted to the bar so that he could practice law in the State of Minnesota. The order failed only because one Justice refused to sign because he had a gay son who Jack never met.
  • Jack Baker retired from practicing law in 2008.
  • JackBaker's post celebrates being "True lovers, 46 years and counting" with Michael McConnell. Today, both of them are age 70, which means they met in 1965 when they were both 23 years old.
  • Jack Baker quotes Kay Tobin and Randy Wickers' 1972 book "The Gay Crusader: "A new look at marriage was being forced upon courts, politicians and public. And maybe a far-reaching social revolution was under way." Wicker had been part of the pre-Stonewall homophile Mattachine Society and so I bet he was aware of the gay marriage issues raised by W. Dorr Legg. Wicker was not a conservative, but he was mature enough to see the significance of Baker's gay marriage activism. I have talked to both Wicker and Jack Nichols about their contemporaneous views of Baker back then and both agreed with me that most gay activists at that time did not embrace the idea of gay marriage because they wanted sexual and gay liberation from what they consider the archaic institution of marriage that was used to oppress women.

I am glad to see that Jack Baker is taking the time to document his history. I would hope that when the U.S. Court rules in favor of gay marriage that Jack Backer is given some high profile coverage in the mainstream press. He deserves it.