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Wednesday, January 14, 2015

More examples of the 1972 Baker gay marriage case being ignored by history

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." Essentially, the court decided the case was a matter of state law and not federal law, leaving it to state law to decide the matter. See previous posts Supreme Court on Jack Baker's gay marriage case 42 years later (3/26/13), 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)

UPDATE Jan. 16, 2015: See post by Lyle Denniston, "Court will rule on same-sex marriage (UPDATED)," posted Jan. 16, 2015 who said, "From the point of view of the four states involved in the cases, their lawyers apparently will not be prevented from making arguments on two points to try to help them salvage their bans: first, that the Supreme Court settled that issue in a summary ruling in 1972 in the case of Baker v. Nelson, so that is the answer to both questions; and, second, that federal courts have no jurisdiction to rule on matters of domestic relations, including marriage, meaning that the regulation of marriage has to be left to the states to decide. . . . If customary practice is followed, the first case listed in the order -- the Ohio case Obergefell v. Hodges -- will become the historic title for the final ruling."

UPDATE Jan. 16. 2015: see post by Art Leonard, "Supreme Court Will Review 6th Circuit Ruling Against Marriage Equality," posted January 16, 2015, who said, "the Court announced that it would devote 90 minutes of oral argument to the question whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex, and 60 minutes to the question whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licenses and performed out-of-state." and printed as Arthur S. Leonard, "Supreme Court Decision to Take Up Marriage Cases Heralds Likely End Game," Gay City News, posted Jan. 16, 2015 without the Baker case mentioned (See below for more abut this editing).

I've written before about how and possibly why the mainstream press and back East media coverage of gay marriage has ignored the Baker v. Nelson case decided by the U.S. Supreme Court in 1972, which left it up to state law to decide on gay marriage. At that time Minnesota marriage laws did not specify gender and so Jack Baker and Mike McConnell were able to legally marry and they remain legally married because no court has ever legally ordered their marriage be annulled. For example, a new book on the history of gay marriage has no mention of the Baker case, despite the fact that it has been cited in nearly all of the gay marriage cases so far. (See previous posts Oregonian book review of new gay marriage history book (12/9/14), First gay wedding 1971 shown on WCCO TV 1973 aroused disgusted viewer reactions (8/2/14) and PQ letter on Jack Baker gay marriage activism vs. Steve Endean political goals (8/2/13))

Recently, I saw a most telling example of how Jack Baker is being intentionally edited out of history from a famous constitutional law professor who writes a weekly column for a professional mass circulation gay newspaper in New York City and who first posts his column submission on his personal blog the day before it is printed and posted on the newspaper's website. Usually his submission is printed word for word, except for a few minor edits or cuts in length at the end needed for space on the printed page.

However, this week the personal blog post by Arthur S. Leonard, "January 2015 Brings a Flurry of New Marriage Equality Developments in First Two Weeks of New Year," posted Jan. 13, 2015 specifically said, "The plaintiffs raised Due Process and Equal Protection challenges under the 14th Amendment, arguing that the ban violates their fundamental right to marry and discriminates against them because of their gender, gender stereotypes, and sexual orientation. The state's first line of defense was to argue that the Supreme Court's decision in 1972 in Baker v. Nelson that a challenge to Minnesota's ban on same-sex marriage failed to raise a "substantial federal question" was binding on the district court and obliged it to dismiss the case. As have most of the other federal judges confronting the Baker v. Nelson argument, Judge Duffey concluded that "doctrinal developments" in the Supreme Court since 1972, and most significantly the failure by the Supreme Court even to mention Baker v. Nelson in its 2013 decision striking down Section 3 of the Defense of Marriage Act, meant that he was not precluded from considering this case on the merits. However, he rejected the plaintiffs' argument that the state's denial to them of the right to marry violated a fundamental right, accepting the state's argument that all of the Supreme Court precedents concerning the right to marry involved different-sex couples and thus did not stand for the proposition that opposite-sex couples enjoy a fundamental right to marry."

However, for some unknown reason, all mention of the Baker gay marriage case is missing from the otherwise identical printed version of the newspaper article by ARTHUR S. LEONARD, "As Marriages Begin in Florida, Flurry of Legal Developments Elsewhere," City News posted Jan. 14, 2015

Yes, I do recall how the gay liberation activists after Stonewall were anti-gay marriage, because they were fighting for sexual freedom and equality and they sincerely believed that gay marriage would hurt their political cause.

Yes, Republicans proved that gay marriage was a great wedge issue that enabled them to win many elections over the last twenty years.

Yes, many back east gays in the media centers of the world still hold a grudge against Jack Baker for some excuse, such as he refuses to do interviews with them.

However, the Baker case and its history is well-documented, with many easy to find sources, and therefore it is inexcusable that the mainstream press continues ignore the pioneering work of Baker, which the majority of states in America now agree with by their marriage laws.