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Saturday, May 31, 2014

Gay Oregon Judge acknowledges validity of 1972 "Baker" gay marriage case by ruling it obsolete

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. At the time, gay marriage was not forbidden by Minnesota law and no court has ever ordered their legally performed marriage be revoked -- they are still legally and happily married today. (See previous posts Life Magazine gay marriage 1971 (11/20/08) and Gay marriage pioneer Jack Baker starts blog (confirmed) (4/4/12))

Arthur S. Leonard, a professor at New York Law School since 1982 and author of a book on gay law, wrote about Oregon's latest gay marriage court battle in his blog post by Art Leonard, "National Organization for Marriage (NOM) Asks Supreme Court to Block Oregon Marriages," posted May 28, 2014.

Leonard's blog post, similar to his book on gay law, summarizes the history and meaning of a one-sentence boilerplate decision, which was commonly used by the U.S. Supreme Court in 1972, for the "Baker" gay marriage case that in-effect said gay marriages are defined by state laws and not Federal law.

I find it ironic that an anti-gay marriage group is now arguing that the U.S. Supreme Court's 1972 "Baker" decision is a binding precedent that state laws define marriage, while a pro-gay marriage Federal Judge in Oregon tacitly acknowledged their point by ruling the "Baker" decision has been rendered obsolete by later court rulings!

Many early gay activists openly criticized law student Jack Baker for bringing his gay marriage case to the U.S. Supreme Court because they feared it would set a negative precedent, which would be hard to overcome when fighting for the equal protection of gay people in the workplace against discrimination.

In the early days of gay liberation after the Stonewall riots in 1969, most gay activists wanted to fight for sexual freedom and they dismissed marriage as being an obsolete and sexist institution created by men to oppress women. They joined forces with many heterosexuals who were also fighting for sexual liberation and freedom from the restrictive blue laws that made all premarital sex illegal.

It is especially sad that the founder of the Human rights Campaign, Steven Endean, who was a gay activist at the same time as Jack Baker in Minnesota during the 1970's, became a loud critic of the political strategy of using gay marriage to make a point. Instead, Endean wanted to politically fight for gay liberation and sexual freedom by working to overturn the old blue laws against gay sex that were regularly used to justify discrimination against homosexuals.

Tragically, Endean died of AIDS shortly after the previously unknown AIDS virus surfaced in the 1980's. On a happier note, Jack Baker and his husband Michael McConnell are still happily married and legally so because no court has ever ordered that their legally performed marriage be revoked (Minnesota law did not specify gender at the time their marriage was legally performed).