Minnesota Same-Sex Marriage Case Loses Round One

State trial judges do not have the authority to overrule decisions by the highest court in their state, so perhaps it is not too surprising that Hennepin County District Judge Mary DuFresne has dismissed a lawsuit brought on behalf of three Minnesota same-sex couples seeking the right to marry.  The March 7 ruling in Benson v. Alverson,  Court File No. 27 CV 10-11697, relies on the first appellate ruling on same-sex marriage in the United States, the Minnesota Supreme Court's 1971 decision in Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185.  However, Judge DuFresne's reliance on Baker seems a bit strange in this context, since the plaintiffs in the new case relied solely on the state constitution, whereas the Baker case was litigated on federal constitutional grounds, but she insisted that there was no basis to believe that Minnesota state constitutional law would provide independent grounds for a same-sex marriage claim, citing the state supreme court's hostility to the Baker plaintiffs to support the point.

In Baker, the Minnesota Supreme Court rejected the argument that denying same-sex couples the right to marry violates the 14th Amendment of the U.S. Constitution, dismissing arguments based on due process (fundamental right to marry) and equal protection, and, in a footnote without any substantive discussion, the 1st Amendment freedom of association and the 8th Amendment ban on cruel and unusual punishment.

In those days, disappointed plaintiffs whose federal constitutional claims were rejected by a state's highest court were entitled to appeal their case to the U.S. Supreme Court.  (These days, the U.S. Supreme Court has  "docket control" regarding such cases and is not required to decide them unless it agrees to grant a petition for review.)  The Supreme Court responded to the appeal by Richard John "Jack" Baker and James McConnell by dismissing the appeal "for want of substantial federal question."  That is, in 1971 the Supreme Court did not think that the question of same-sex marriage presented any sort of substantial federal issue that would require it to call for full briefing, hold oral arguments, and write an opinion.

Ever since then, one of the arguments made by state defendants in federal same-sex marriage cases has been that there is no valid federal constitutional claim because of Baker v. Nelson, which is, at least theoretically, a U.S. Supreme Court ruling on the merits, even though the Court did not say anything beyond the curt language of dismissing the appeal quoted above.   Plaintiffs have argued (successfully last summer in Perry v. Schwarzenegger, the Prop 8 case decided in the Northern District of California and now pending before the 9th Circuit), that Baker is no longer a controlling federal constitutional precedent because intervening U.S. Supreme Court decisions in cases such as Romer v. Evans and Lawrence v. Texas have totally changed the legal landscape for due process and equal protection claims by gay litigants.

Most recently, for example, Attorney General Eric Holder has apparently abandoned the precedent of Baker in his determination that Section 3 of the Defense of Marriage Act, which withholds federal recognition for same-sex marriages lawfully contracted in those states that allow them, violates the equal protection requirement of the 5th Amendment.

Attorney Peter Nickitas, who represents the plaintiffs in the Minnesota case (Duane Gajewski and Douglas Benson, Tom Trisko and John Rittman, and Jessica Dykhuis and Lindzi Campbell), tried to persuade Judge DuFresne that she could ignore Baker, as this is a state constitutional case, raising no federal claim, but she was not convinced.  

While conceding that at times the state constitution may provide broader protection for individual rights than the comparable federal constitutional provisions, Judge DuFresne insisted that "plaintiffs have not demonstrated that this Court has any authority to ignore Baker and afford same-sex couples greater or different protections than the federal constitutional provides."   She observed that the Minnesota Supreme Court "was not sympathetic to the Baker plaitniffs' claims," and could not find any indication that the Minnesota Supreme Court has reached "a clear and strong conviction that there is a principled basis for greater protection for same-sex couples under the State Constitution."  In short, she found "no reason to believe that the result in Baker would have been different had the Baker plaintiffs alleged violations of the Minnesota Constitution."  She wrote that "unless and until" the Minnesota Supreme Court overrules Baker, "Same-sex marriage will not exist in this state."  After citing Baker, she wrote, "This, of course, is binding precedent on this Court, and this Court is not free to ignore it."

Perhaps in the very broadest sense, one might argue that a trial judge in Minnesota may not rule in favor of a right for same-sex couples to marry when the state's highest court previously ruled against such a right, albeit forty years ago.  But this seems like an odd result, especially when the federal constitutional landscape upon which Baker was premised has been turned on its head by subsequent developments.  The judge insisted that she could not ignore Baker on the basis that "times have change."  "Times may have changed," she said, "but the law has not."  That statement could certainly be challenged.  Constitutional law regarding the rights of gay people is vastly different today from what it was in 1971. 

Because the complaint filed by the plaintiffs raised only state constitutional claims, and the Baker court's analysis obviously could not take any account of the major subsequent changes in the law, it was certainly open to Judge DuFresne, contrary to her assertions, to look afresh at the question of how the Minnesota Supreme Court might analyze the state constitutional issues were they presented today. Thus, unless there have been other rulings on these issues by the Minnesota Supreme Court since then, and none are mentioned by the court, it is hard to understand why Judge DuFresne would conclude that Baker precludes a state constitutional challenge to the Minnesota statute forbidding same-sex marriages.

The court also dismissed the plaintiffs' freedom of association and religious freedom arguments.  She found that there is no clearly-spelled-out right to freedom of association under the Minnesota Constitution that would go beyond what federal law might protect, and denied that the religious freedom of plaintiffs is improperly constricted by the failure of the state to afford them a right to civil marriage.  She pointed out that religious organizations are free to perform marriage ceremonies for same-sex couples in Minnesota; for the participants, such ceremonies may have spiritual significance, but she insisted that it was within the power of the state to decide that they would have no civil significance.

The trial court is merely the first stop in a same-sex marriage case in any event, so the plaintiffs were always going to have to take their case to the state Supreme Court to achieve a final victory.  In that sense, a loss in the trial court is no big deal, but Judge DuFresne seems to be out of step with the trend over the past few months towards support for same-sex marriage rights. 

Plaintiff Doug Benson, who is executive director of Marry Me Minnesota, a non-profit group that was formed to bring this case, told the newspaper that an appeal will be filed promptly.  The plaintiffs have called on Minnesota Governor Mark Dayton and Attorney General Lori Swanson to disavow defense of the state's marriage law, citing the recent action by U.S. Attorney General Holder, but no response to that call has been reported yet….

One thought on “Minnesota Same-Sex Marriage Case Loses Round One

  1. Thank you for explaining the legal “trick” Jack Baker often bragged about using in his gay marriage case to force the U.S. Supreme Court ruling on his gay marriage case (this is something I asked about in a previous comment.) You answered, “In those days, disappointed plaintiffs whose federal constitutional claims were rejected by a state’s highest court were entitled to appeal their case to the U.S. Supreme Court. (These days, the U.S. Supreme Court has “docket control” regarding such cases and is not required to decide them unless it agrees to grant a petition for review.)”)
    Baker’s “legal trick” must have been a common one back then because the U.S. Supreme Court often issued the same exact ruling, “Dismissed for lack of a substantial federal question.” I recently confirmed this fact when I went to a University library archive and dusted off the original bound paper copies of U.S. Supreme Court rulings issued during the Baker time period. When I thumbed through them, I quickly found page after page of short court rulings nearly identical to the Baker one. This also explains why later court rulings treated these types of rulings as having less weight than a “real” U.S. Supreme Court ruling.
    As I mentioned before, I was part of Jack Baker’s F.R.E.E. (Fight Repression of Erotic Freedom) group at the University of Minnesota and I witnessed how Baker was considered a lunatic even by other gay people. I also saw how Baker’s partner was fired by the University of Minnesota library simply for being gay.
    Conservatives viewed gay marriage as being immoral or ludicrous. Liberals, including both women liberationists and gay liberationists, felt the goal of marriage was sexist and contrary to their goals of sexual freedom. I was one of the few people back then who supported gay marriage activism.
    Baker got so fed up with the negative political backlash to his marriage that he finally gave up and focused on his law practice by ignoring all requests from reporters or historians to correct the record. As a result, many errors in reporting have been repeated over the years. (For example, a recent news story, about Baker’s case in the Minneapolis Star-Tribune, incorrectly called Baker’s partner a U of M student when he had actually been hired as a university librarian and fired for being gay. Jack Baker was the U of M law student.)
    Jack Baker and Frank Kameny were pictured and named important to the gay liberation movement on pages 68 and 69 in the article “Homosexuals in revolt: The year that one liberation movement turned militant,” Life Magazine, Dec. 31, 1971, pp. 62-72 and “Letters to the editors,” Life Magazine, Jan. 28, 1972, p. 27.
    “Life” magazine was a very popular photo news magazine that had a circulation in the millions and it was widely read across America, including by school children.
    Ironically, contrary to the “militant” headline, both Jack Baker and Frank Kameny were dismissed as being too conservative by the New York gay liberationists who controlled most of the national gay agenda at that time. (Kameny was an early part of the Mattachine Society of homophile activists that was started up before the 1969 Stonewall riot occurred. Kameny supported evolutionary change instead of revolutionary political change as advocated by the truly militant faction of gay liberationists after Stonewall.)
    Also contrary to the “militant” story headline, the same “Life” article also printed a photograph of Reverend Troy Perry of the Metropolitan Community Church conducting a same-sex marriage ceremony in 1971. (“Homosexuals in revolt: The year that one liberation movement turned militant,” Life Magazine, Dec. 31, 1971, p. 70) Perry continued his gay marriage activism for decades afterward.
    For photos, see my blog post “Life Magazine gay marriage 1971 (11/20/08)”
    PHOTO: May 18, 1970 Michael McConnell and Jack Baker were married by Hennepin County Minnesota Justice of the Peace. (From Ken Bronson, “A Quest for Full Equality,” http://www.may-18-1970.org self-published May 18, 2004, p. 6-7, 48 (PDF))
    Finally, concerning Minnesota State vs. Federal constitutional rights, the Oregon Supreme court has made numerous rulings that Oregon’s Constitution grants more freedom of speech rights than does the First Amendment to the Federal constitution. (If I recall right, this has come up in cases over “pornography” and nudity, which is not illegal per se in Oregon.) This was not a surprise given the history of the independent-minded “Go West” pioneers who founded Oregon. This is why I agree with you that it is strange for a Minnesota Judge to acknowledge this point of constitutional law, but then dismiss it without any good reason.

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