PHOTO: Cover of "The Advocate" magazine print edition (left) included inside (right) a photo of Jack Baker and Michael McConnell being legally married in 1970 as part of the article by Jacob Anderson-Minshall, "Marriage Equality Was Won by Widowers - the love stories behind the landmark cases both ended tragically," The Advocate, Jun.-Jul. 2017, p.80-81 advocate.com posted 5/3/2017. (Note: This was a special 50th anniversary edition of "The Advocate") As a law student, Baker took his marriage equality case to the U.S. Supreme Court (Baker v. Nelson 1972) where the court's decision essentially said that marriage is decided by State laws and not Federal laws. Baker believes his marriage is still valid because Minnesota State law did not prohibit same-sex marriage at that time, and so he has initiated legal proceedings to establish that fact. (See previous posts Baker-McConnell marriage in 'The Advocate' 50th anniversary issue (5/22/17) and Book by Michael McConnell on his marriage to Jack Baker that led to the first Supreme Court case on gay marriage (12/29/15))
The gay marriage pioneers Jack Baker and Michael McConnell recently cc'd me on their email to a marriage law attorney working with them, Yale Law School Professor William N. Eskridge, Jr., which included a PDF copy of a legal brief they have filed in their quest to get a Minnesota court of law to require a Minnesota County to legally record their 1971 same-sex marriage that was legally performed under Minnesota State law at the time, and never legally dissolved by any court order. Blue Earth County, without any legal authority or a court order, refused to record the marriage retroactively after it was legally performed, despite the fact that no Minnesota law prohibited same-sex marriages at that time and later anti-gay marriage legislation was not retroactive before it was overturned by the U.S. Supreme Court decision on gay marriage.
I was barely able to read the 30 page legal brief, given my worsening low vision blindness, but for my own notes I have selected a few quotes below, which may be hard to read and understand due to the legal language that I was too lazy to edit into some less technical language:
Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)
Baker v. Nelson, 409 U.S. 810 (1972) . . .
Minneapolis-Honeywell Regulator Co. v. Nadasdy, 76 N.W.2d 670 (Minn. 1956) . . .
Obergefell v. Hodges,135 S. Ct. 2584 (2015). . .
United States Social Security Administration, Survivors Planner: If You're Surviving Divorced Spouse, https://www.ssa.gov/planners/survivors/ifyou3.html . . .
STATEMENT OF THE CASE
James Michael McConnell and Pat Lyn McConnell a/k/a Richard John Baker (Appellants or the McConnells) appeal from the April 7, 2017 Order of the Honorable Bradley C. Walker, Judge of Blue Earth County District Court, which denied their Petition for a Writ of Mandamus and requests for injunctive relief. (Add. 1 (Order).) . . .
The basis for all claims is that the County and its local registrar improperly refused to fulfill their ministerial duties to record Appellants marriage certificate and to provide them with certified copies of the recorded certificate as required by Minnesota law. . . .
When Appellants were married in 1971, marriages in Minnesota were governed by Minn. Stat. ch. 517 (the 1971 Statute). . .
After the examination period expired, and once the license was issued, the 1971 Statute provided no authorization to revoke, withdraw, or invalidate an issued marriage license. . .
Finally, and relevant to this appeal, under the 1971 Statute, the clerk of court was required to record the marriage certificate. The statute affirmatively mandated that [t]he clerk shall record such certificate in a book kept for that purpose.Œ Id. á 517.10. The statute even imposed a penalty for failing to comply with the mandatory duty to record the marriage certificate. . . .
. . . only three specific types of prohibited marriages were deemed automatically void: marriages between close relatives; underage marriages; and marriages where one party was already married. . .
All other prohibitedŒ marriages, 5 such as remarrying within six months of being divorced, were not automatically deemed void by the 1971 Statute. Same-sex marriages were not expressly prohibited by Section 517.03, and were not made absolutely void by Section 518.01. . .
STATEMENT OF THE FACTS
The McConnells are residents of the State of Minnesota. (Add. 12, K 4.) They were married in 1971 after being issued a marriage license by Blue Earth County. (Id.) The McConnells, who were 74 years old at the time the Verified Petition was filed, have lived together as a married couple for more than 45 years. (Id.) They have been continuously recognized as a married couple by their family members, friends and colleagues, and in their church and community. . . .
On September 3, 1971, well within the six-month period of validity of the Marriage License, the McConnells solemnized their marriage in a ceremony conducted by an authorized minister of the United Methodist Church. . .
Previously, the McConnells had applied for and been denied a marriage license in Hennepin County on the sole basis that they were of the same sex, a decision that was on appeal at the time Blue Earth County issued the Marriage License. See Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), overruled by Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015). The Minnesota Supreme Court¡s decision affirming the denial of the Hennepin County license application was issued on October 15, 1971. Id. The United States Supreme Court opinion dismissing the appeal was issued in 1972. Baker v. Nelson, 409 U.S. 810 (1972), overruled by Obergefell v. Hodges, 135 S. Ct. 2584 (2015). . . . Connor received the Marriage Certificate on September 8, 1971.
Evidence submitted to the district court suggested that the County determined sometime before August 31, 1971¢that the Marriage License, although it had been duly issued, was defective, but the County provided no basis for the purported defect. (Add. 5.) The McConnells did not receive notice that the Marriage Certificate had not been recorded, and believed that it had been. . .
Forty-three years later, on September 29, 2014, Michael McConnell wrote to the County requesting three certified copies of the recorded Marriage Certificate. (Add. 15, * 24; Add. 28.) The McConnells sought the certified copies of their recorded Marriage Certificate for the purpose of securing certain Social Security benefits and for estate planning purposes. . . .
The United States Supreme Court, recognizing that marriage is a fundamental right, acknowledged the harm that flows from the failure to recognize a person ¡s status of being legally married. See Obergefell, 135 S. Ct. at 2601-02 (explaining that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter).
Respondents also argued that an adequate remedy for their failure to record the McConnells¡ Marriage Certificate would be for the McConnells to get married again. . . .
Remarriage would deny that the McConnells are already married, and have been so for many years. This fact has tremendous personal significance to the McConnells, their friends, and family. It also has legal significance, to the extent that a marriage of 46 years conveys additional rights and benefits in comparison to a marriage of just a few months.5 Therefore, remarrying would not be as complete, beneficial, and effective of a remedy as simply compelling Respondents to record the Marriage Certificate, as the law requires.6
The duration of a marriage can have legal significance in many ways, such as affecting retirement and survivor benefits available from the Social Security Administration, private pension rights, spousal coverage under employee health and welfare benefit plans, inheritance rights and others. See, e.g., 42 U.S.C. á 416(f) (The term husband means the husband of an individual, but only if . . . he was married to her for a period of not less than one year immediately preceding the day on which his application is filed[.]Œ); United States Social Security Administration, Survivors Planner: If You're The Worker's Surviving Divorced Spouse, https://www.ssa.gov/planners/survivors/ifyou3.html (explaining that a 10-year marriage is required for eligibility for certain Social Security survivor benefits). . . .
First, there is no express authority in either the 1971 Statute or the current Marriage Statute that permits Respondents, after a marriage has been solemnized, and after the marriage certificate has been signed by the presiding official and returned to the County, to invalidate the marriage license or the marriage itself. The Marriage Statute expressly permits the clerk of court (or today, the local registrarŒ) to refuse to issue a license before a marriage occurs if, during the five-day examination period, it discovers that there is a legal impedimentŒ to the marriage. Minn. Stat. á 517.08, subd. 1 (1971); Minn. Stat. á 517.08, subd. 1b (2016). However, there is no express authority in the Marriage Statute for the clerk or the local registrar after a marriage license has been issued and a marriage has occurred to retroactively deem either the license or the marriage to be invalid. Neither Respondents nor the district court¡s Order identify any such express authority. . .
. . . the long-established rule in Minnesota is that once a marriage has occurred, it cannot retroactively be deemed a nullityŒ or voidŒ unless the legislature, by statute, has expressly declared that type of marriage void.
The legislature did not declare same-sex marriages voidŒ until 1997, at which point the McConnells had already been married for 26 years, and then did so only prospectively, not retroactively. See 1997 Minn. Laws ch. 203, art. 10, secs. 2 and 4. The 1997 legislation amended Minn. Stat. á 517.03 to, for the first time, expressly prohibit same sex marriage. At the time, á 518.01 declared marriages prohibited by á 517.03 to be void. However, the 1997 enactment was not retroactive; it expressly did not apply to marriages contracted within this state prior to March 1, 1979. 1997 Minn. Laws ch. 203, art. 10, sec. 4. The prohibition was repealed in 2013. See 2013 Minn. Laws ch. 74, sec. 2. Accordingly, not only was the McConnells marriage in 1971 not deemed void by the legislature at the time; it has never been deemed void. . .
For the reasons set forth above, Appellants respectfully request that the Court reverse the district court's Order and remand the case to the district court for issuance of the requested writ of mandamus and injunctive relief."
(Quoted from State of Minnesota Court of Appeals, notice of case filing No. A17-0688, Apr. 27, 2017. James Michael McConnell and Pat Lyn McConnell a.k.a. Richard John Baker, Appellants, vs. Blue Earth County, et. al. Respondents - accessed Jul. 1, 2017 from 30 page PDF copy)
(See previous posts Baker included in new gay marriage history book (6/16/17), Book by Michael McConnell on his marriage to Jack Baker that led to the first Supreme Court case on gay marriage (12/29/15) and Baker on gay marriage in 1972 vs. 2015 reaction to Supreme Court ruling (7/17/15))