As a young man in the 1970s, gay activist and attorney Jack Baker claimed many "firsts" in his life — first gay student-body president of any university, first attempted gay marriage, first adult adoption of one’s same-sex partner. Today, the first Supreme Court decision on same-sex marriage — a nearly 40-year-old case bearing his name — links him to perhaps the most important civil rights suit of the decade.
In Baker v. Nelson, the justices in 1972 summarily dismissed an appeal by Baker and his life partner, Michael McConnell, who argued their constitutional rights had been violated by Minnesota’s refusal to grant them a marriage license. The justices, in a one-sentence order, dismissed their case "for want of a substantial federal question," leaving in place a Minnesota Supreme Court ruling.
As litigation over Proposition 8, banning same-sex marriages, continues to unfold in California, Baker is a precedent with which the lower court judges must deal. But just how much weight that precedent carries is another controversial piece in the complex litigation. Judge Vaughn Walker in the Proposition 8 challenge — Perry v. Schwarzenegger — distinguished Baker from the case before him and did not follow it. Some legal experts argue it is indistinguishable.
Regardless, "the 9th Circuit must deal with it," said Daria Roithmayr of the University of Southern California Gould School of Law.
But for Jack Baker, who with McConnell has lived the past four decades in Minneapolis, same-sex marriage is no longer one of his priorities.
"I stopped dealing with this issue in 1980 when it took off on a life of its own," said Baker. "I just figured, ‘Let it run.’ I have other issues."
Even though Baker stands as a negative precedent for proponents of same-sex marriage, those proponents, particularly now in California, owe a huge debt to Baker and his path-breaking legal champion, the Minnesota chapter of the American Civil Liberties Union, according to constitutional scholars. "Almost exactly the same arguments he made in 1971 in the ACLU briefs were the ones made in Proposition 8 and accepted by Judge Walker," said William Eskridge of Yale Law School.
"They argued, using Loving v. Virginia, which was what they had at the time, that they had a fundamental right to marry — exactly what Judge Walker held. And then they argued it was invidious discrimination based on an irrational prejudice against gay people — exactly what Judge Walker held."
The Baker case was the first same-sex marriage lawsuit in the country and, at the time, there was never a question in the mind of the president of the Minnesota Civil Liberties Union that his organization would take the lead. "Of course it was controversial, but we were a major force with regard to gay and lesbian rights, and someone had to be the first to do it," said Matthew Stark, who served as president from 1976 to 1973 and subsequently as executive director until 1987.
When the MCLU took Baker and McConnell’s case, Stark recalled, "I personally went to the ACLU executive committee in New York — I was on the national board — and asked them to join. They said no. We went ahead and litigated anyway."
About two years ago, he added, he received a letter from Norman Dorsen who was general counsel of the ACLU from 1969 to 1976. "He said, ‘You were right; we were wrong.’"
Baker quickly became a public figure while attending the University of Minnesota. He is credited with founding the first gay student organization in 1969. In 1971, he was elected the first gay student-body president of any university and was re-elected in 1973.
He and McConnell applied for a marriage license in 1970. After it was rejected — but before the state Supreme Court decision in his challenge — McConnell adopted Baker in an effort to obtain some of the benefits of marriage — a tool later used by other same-sex couples. In 1971, they applied again and were awarded a marriage license in Mankato, Minn. They were married by a Methodist minister in Minneapolis.
"Jack put himself out in front with everything, from megaphone to print," recalled Lynn Castner, who, with the late Michael Wetherbee, was counsel to Baker in the Supreme Court appeal. "He was a very, very active advocate for rights."
And both men paid a price, said the now-retired Castner and Stark. "We were working very closely with them on several issues," recalled Stark. "Gay marriage was one. Another was Mike McConnell had been offered a job at the University of Minnesota library. As the gay marriage issue got publicized, they refused to hire him. Another issue was Jack Baker being allowed to take the bar exam. We were successful on the bar issue and we lost on the university hiring and same-sex marriage issues."
The hostility directed at them and the setbacks they suffered are "true of all leaders," Stark said. "They are both fine people. It was extremely difficult and painful to be living in a country where you could not get married. It is still an issue in Minnesota."
But the issue of same-sex marriage is "fundamentally over," believes Stark who, along with his wife, splits his time now between homes in Minnesota and Florida but still is active in gay and lesbian issues. "The gay and lesbian community has won," he said. "It’s now about getting it into operation that we are fussing about. It will be overwhelmingly accepted in a matter of years, just as the teaching of evolution has been."
Baker is a key part of the fuss. The decision does have precedential value but the question now is how seriously it will be taken by the 9th Circuit, said Vikram Amar of the University of California-Davis School of Law.
The Baker decision was a "summary disposition," a one-line order without an explanation by the justices. The Supreme Court in the 1970s, he said, made clear, particularly in Hicks v. Miranda, that a summary dismissal for want of a substantial federal question constitutes a ruling on the merits that is fully binding on lower courts. Baker should have been a problem for opponents of Proposition 8 as it has been in a number of other same-sex marriage cases.
A dissenting Justice William Brennan in Hicks said that, without an explanation of the dismissal, lower courts do not know what issues have been resolved.
"What that has done is led lower courts, understandably and correctly, to construe these dismissals as having decided as little as possible," said Amar. "As long as the case the court is dealing with is arguably different from the one that was summarily dismissed, then there is running room for a lower court to do what it wants.
"You still need to find some difference between that dismissed case and your case today," he added. "The problem with Baker is it’s not obvious what the difference is."
But Judge Walker found several ways in which Baker differs from the Perry case. As USC’s Roithmayr explained, Walker found important and different facts in the two cases. "In Baker, there was a statute neutral on its face but interpreted to prohibit gay marriage," she said. "In Perry, he said he was looking at a statute that expressly prohibits gay marriage. In addition, that statute strips gays and lesbians of their right to marry, a right that had been accorded to them by a prior court."
Walker also pointed to doctrinal developments since Baker, she added, that push the analysis toward finding there are constitutional interests at stake in legislation that could be interpreted as anti-gay. Those developments include Supreme Court decisions striking down laws that criminalize consensual sodomy and a state constitutional amendment denying protection from discrimination on the basis of sexual orientation.
Amar said he could "easily see" a 9th Circuit that didn’t want to decide the same-sex marriage issue saying Baker is on the books and, until the Supreme Court chooses another case to revisit the issue, Baker is binding.
"Even if the 9th Circuit expansively affirms Walker, it’s conceivable the Supreme Court could reverse on the narrow ground it should have followed Baker and the time is not ripe to revisit this issue," he added.
Baker should not be dispositive, argued Yale’s Eskridge, because "it is 40 years old; the whole social understanding of gay marriage could not be further from the social understanding in the 1970s, and Supreme Court precedents have undergone a sea change."
Jack Baker no longer publicly engages in the legal arguments. "The first thing you learn in law school is judges read newspapers," he said. "It’s going to turn out precisely as I predicted on day one, the same way as all other countries of the world."
Marcia Coyle can be contacted at firstname.lastname@example.org.