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Tuesday, March 26, 2013

Supreme Court on Jack Baker's gay marriage case 42 years later

May 18, 1970 Michael McConnell and Jack Baker married by Hennepin County Minnesota Justice of the Peace

PHOTO: May 18, 1970 Michael McConnell and Jack Baker were married by Hennepin County Minnesota Justice of the Peace. As a law student, Baker brought his gay marriage case all the way to the U.S. Supreme Court in the Baker V. Nelson case, which was dismissed with a boiler plate ruling that was frequently used by the court back then. See previous posts Oregon same-sex marriage vote and Pope resigns hits front page (2/21/13), Life Magazine gay marriage 1971 (11/20/08), Gay marriage pioneer Jack Baker starts blog (confirmed) (4.4.12), and Sam Champion gay marriage 2012 vs. 1970 Jack Baker (1/8/13).

The U.S. Supreme court just heard arguments in the latest gay marriage case and I just read the "Transcript And Audio: Supreme Court Arguments On California Gay Marriage Ban," npr.org posted Mar. 26, 2013 1:57PM.

The Supreme Court discussed Jack Baker's gay marriage case from over 42 years ago during arguments in the present California case, but the court seemed to have forgotten how the so-called "decision" they made 42 years ago (essentially that gay marriage is only a matter of state law and not federal law) was only a boilerplate decision that was commonly copied word for word by the court to dismiss cases they had been forced to hear by policy, but cases they didn't want to spend any time actually deciding. (For a photo of an original printed bound copy of the Baker decision, see below or see previous posts Arthur Leonard CA Prop 8 appeal still citing Jack Baker gay marriage case (8/3/12) and Baker v. Nelson 1972 Supreme Court order on gay marriage (7/22/09))

Below is the reference to Jack Baker's gay marriage case as quoted from the "Transcript And Audio: Supreme Court Arguments On California Gay Marriage Ban," npr.org posted Mar. 26, 2013 1:57PM:

"MR. COOPER: The issues, the constitutional issues that have been presented to the Court, are not of first impression here. In Baker v. Nelson, this Court unanimously dismissed for want of a substantial Federal question.

" JUSTICE GINSBURG: Mr. Cooper, Baker v. Nelson was 1971. The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. MR. COOPER: That is --

" JUSTICE GINSBURG: 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.

" MR. COOPER: Well, Your Honor, certainly I acknowledge the precedential limitations of a summary dismissal. But Baker v. Nelson also came fairly fast on the heels of the Loving decision. And, Your Honor, I simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no substantial Federal question if it is true, as the Respondents maintain, that the traditional definition of marriage insofar as - insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti-gay malice and a bare desire to harm.

" JUSTICE KENNEDY: Do you believe this can be treated as a gender-based classification?

" MR. COOPER: Your Honor, I --

" JUSTICE KENNEDY: It's a difficult question that I've been trying to wrestle with it.

" MR. COOPER: Yes, Your Honor. And we do not. We do not think it is properly viewed as a gender-based classification. Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense.

" But we -- we agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that -- that classification can be viewed as being one of sexual orientation rather than --"

(Quoted from "Transcript And Audio: Supreme Court Arguments On California Gay Marriage Ban," npr.org posted Mar. 26, 2013 1:57PM)

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: the first court case on same-sex marriage was initiated by University of Minnesota law student Jack Baker in 1970: 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. The Appeal was "dismissed for want of a substantial federal question." Notice how this same phrase was used to dismiss scads of other cases. The court seemed to be using it as shorthand to say a case was a matter of state law and not federal law. See previous posts Arthur Leonard CA Prop 8 appeal still citing Jack Baker gay marriage case (8/3/12) and Baker v. Nelson 1972 Supreme Court order on gay marriage (7/22/09)

I mentioned both the Oregon State University professor W. Dorr Legg's conservative case for gay marriage from 1953 and the gender discrimination argument for gay marriage, which was brought up by the court again, in my previous post Would former HP CEO have wanted voters to decide women's rights in the 1950's? (3/22/13)

Although Jack Baker was the first person to champion gay marriage, the Rev. Troy Perry also helped to promote the concept by performing religious marriage ceremonies for gay couples. Perry's past and potential future contribution to gays and religion was discussed in a recent article by Rachel Zoll, Associated Press, "Do gays need a church of their own anymore?" printed in Gazette-Times, Jan. 2, 2013, p. A8, posted on usnews.com Jan. 1, 2013.

The Jack Baker Now is the time Blog Website has copies of letters sent to Jack Baker that are poignantly interesting to read. See previous post Gay marriage pioneer Jack Baker starts blog (confirmed) (4/4/12)

Also see Thomas Kraemer's previous blog posts on Jack Baker and gay marriage activism: