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Amazing But True: The American Gay Couple That Has Been Legally Married For 40 Years
| Posted on July 29, 2013 at 10:05 PM |
By Dennis Stone
Gay marriages will be happening here in Minnesota beginning this Thursday, August 1. It was less than a year ago that the outcome of the state ballot initiative to put a prohibition of gay marriage into the state constitution was seriously in doubt. The polls were extremely close, and equality opponents have historically voted in greater numbers than supporters. We all breathed a huge sigh of relief when that initiative was defeated, but many observers felt it could be several years before marriage was legalized.
And now here we are, less than a year later! On Thursday there will be multiple stories of happy couples being among the first to exercise their new rights to equality. Project 515 – a terrific local group named for the 515 ways in which the lack of marriage equality impacted gay people – is holding a midnight wedding reception to celebrate equality at the minute it becomes possible.
But I’ll bet you didn’t know that there is one Minnesota gay couple that has been legally married for almost 42 years. It is a fascinating story, though it amazingly got almost no mention during the past year.
Jack Baker was a law student and activist at the University of Minnesota in 1970, and Michael McConnell was a librarian. They had been together for four years when they first applied for a marriage license that year. Unsurprisingly, the application was denied. They appealed the case all the way to the U.S. Supreme Court, which chose not to hear the case in 1972, citing the lack of a “substantial federal question.”
Baker (right) and McConnell applying for a marriage license.
The appeal to the Supreme Court was aided by the Minnesota Civil Liberties Union, though the American Civil Liberties Union seemed to have little interest. Many of Baker’s fellow activists also had little enthusiasm for the idea, the post-Stonewall generation seeing marriage as a heterosexual institution and counter to the free love revolution many of them preferred.
In the meantime, Baker and McConnell tried a different strategy. McConnell legally adopted Baker, and Baker changed his name to Pat Lynn McConnell. (That is still his legal name today, though he commonly uses “Jack Baker”.) They moved to Blue Earth County and applied for a marriage license, using Baker’s new name. The subterfuge worked, and the license was granted.
Baker (standing) and McConnell. (AP file photo)
The couple planned a large wedding in Minneapolis, and enlisted a Methodist minister to officiate since the Methodist Church at that time had no rules against officiating at same-sex weddings (presumably because no one ever thought they could occur). They went through weeks of pre-marital counseling like any other couple. However, 24 hours before the ceremony the minister changed his mind and dropped out. At the last minute Pastor Roger Lynn, also Methodist, stepped in. Lynn had worked with Baker and McConnell at a Minneapolis drop-in center offering support and counseling to gays.
On September 3, 1971, the marriage took place. Lynn pronounced the couple “husband and husband,” and history was made. The first legal gay marriage had occurred. The Hennepin County (Minneapolis) attorney tried to invalidate the marriage license because it had not been obtained in the county of residence of the bride, as required by law. Of course, it was impossible to meet that requirement of the law because there was no “bride”. The attorney convened a grand jury to hear the case, but the grand jury decided the issue wasn’t worth pursuing. The marriage license to Baker and McConnell has never been revoked, and they therefore have been legally married since their wedding. They still live in Minneapolis, and they will celebrate their 42nd anniversary in about a month.
McConnell and Baker on the "David Susskind Show" in 1973.
Baker was quite a prophet. He had said, beginning in 1970, that some day marriage equality would become law. He thought there was no alternative, since a reading of the law that eliminated preconception and emotional bias could come to no other conclusion. While most of us are surprised that marriage is happening so rapidly, based on what Baker said many times I’m guessing he is surprised it took so long. The arguments he used from 1970 on are the arguments that are used before the Supreme Court today.
Here is a link to a YouTube video of Baker and McConnell on the David Susskind show in 1973. (Baker is doing the talking.)
(Coming: Part 2. There is a lot more to the story of Baker and McConnell, and you can read about it in the second part of this story.)
Categories: History Lessons
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8 Comments
Jack Baker says...
Wrong. According to The Family Law Reporter (1974) the Minnesota Supreme Court's decision does not reach back to a lawful license solemnized "a full six weeks" before that decision.
Records at The National Archives certify that "McConnell and Baker?s marriage license [from Blue Earth County, MN] was never revoked. They are still married and have been for the last forty two years."
http://www.archives.gov/kansas-city/press/newsletter/2013-septemb
er.pdf#page=7
John says...
All due respect to these guys, and I have long been an admirer of their initiative (despite its sticking us with a terrible legal precedent), they are not and never have been legally married. Their first attempt to force Minnesota to issue a marriage license was rejected all the way up to the U.S. Supreme Court. This second attempt, even if no specific legal proceeding voided it, was voided when the Minnesota Supreme Court a month later ruled that state law "does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited." A grand jury would not have met to address the civil question of whether the Blue Earth County license was valid. It's more likely they were meeting to decide whether to charge the couple with criminal fraud.
This story has been all over the blogosphere today and in other reports the couple says it has no intention of marrying under the new law since they believe themselves to be legally married already. Given that they are both in their 70s, I sincerely hope they change their mind before having to deal with trying to convince anyone else to accept that should it come to a serious illness or death of one of them.
Wrong. According to The Family Law Reporter (1974) the Minnesota Supreme Court's decision does not reach back to a lawful license solemnized "a full six weeks" before that decision.
Records at The National Archives certify that "McConnell and Baker?s marriage license [from Blue Earth County, MN] was never revoked. They are still married and have been for the last forty two years."
http://www.archives.gov/kansas-city/press/newsletter/2013-septemb
er.pdf#page=7
Dennis Stone says...
John - I'm not a lawyer, though I know more about the law than the average person. Based on your comments on theBacklot you obviously know a lot about the law, though I recall you saying there that you aren't a lawyer. Here's the thing. Jack Baker IS a lawyer, and has been one for 40 years. And he was a rather brilliant one. If he says the marriage is still valid that's a consideration that has considerable weight.
Baker is correct that a marriage is a civil contract. However, that contract includes the State as a party. The State, in the form of the Minnesota Supreme Court ruling in Baker v. Nelson, stated definitively that prior to August 1, 2013 no valid contract of marriage could exist between the state and two people of the same sex. There cannot be a valid contract if the parties are not as a matter of law eligible to enter into that contract. No separate ruling from the state is needed to void the Blue Earth County license because under the court's ruling it is void on its face.
I've officially spent way more time researching this than I had ever intended, but in looking further into the issues surrounding the IRS denial I find that Baker and McConnell did litigate the Blue Earth County marriage license, in McConnell v. Nooner, an attempt to secure additional Veterans Administration educational benefits for Baker. The Eighth Circuit Court of Appeals ruled against them in 1976. The same court ruled against them in 2005 regarding the IRS claim. I'm not sure how much more adjudicating is needed.
He appears to look at the situation as a matter of contract law. Here is what he said about it very recently on a small blog he maintains: "...a license was obtained in Blue Earth County. It was signed by the Rev. Roger Lynn, a United Methodist minister. Because our contract was not revoked by any court, the first legal gay marriage stayed in effect." A marriage is indeed a contract. They legally obtained a license, then they had a marriage that was made legal by the signature of Pastor Lynn. A contract had been entered into. Contract law is a tricky, thorny thing, and rulings aren't always what you'd expect. Baker obviously believes that a legal contract isn't automatically voided by a non-contract generalized ruling in another case. I see a lot of validity in that position. But that's what we have courts for, to rule on debatable issues like that. To this date no court has ruled and invalidated his marriage contract.
I'm not aware that they ever tested their marriage in a state environment, just a federal one. In 2003 the IRS invalidated their joint return with a reference to DOMA, which would have nothing to do with their legal status in Minnesota. The 1973 ruling was by the IRS, not a legal body. So you can't say their case was actually "adjudicated".
I like how Baker responded when a reader suggested it would be great if he and McConnell would show up for the first Minnesota weddings on August 1. Here's what he said: "We did show up to the first marriage, on 3 September 1971. The law does not allow one to apply for a second marriage license until a judge disvolves the first."
John says...
But that's not how the law works. There was no need to adjudicate the validity of the Blue Earth license because the ruling of the Minnesota Supreme Court that state law prohibited same-sex marriage invalidated it on its face. No marriage of two men could legally exist in Minnesota in 1971 so a marriage license issued to two men was perforce invalid.
Dennis Stone says...
John - That's a debatable point. You say their case was decided by the Minnesota Supreme Court. Actually, the case that was decided was based on their application for a marriage license in Hennepin County. They did indeed obtain a totally legal license in Blue Earth County, and their marriage was based on that license, not the one never granted in Hennepin County. The Blue Earth license was never challenged, apart from the "grand jury" (as it was described in a couple of articles I read) that chose not to pursue it. In other words, the case of the marriage license that was issued to them was never adjudicated. You could make the inference that if it WERE legally challenged, Baker and McConnell would lose, based on the ruling in the other case. But the case of the Blue Earth license was never adjudicated, and Baker believes a legal proceeding would be needed to invalidate what was legally issued prior to a ruling in another case. I don't think rulings can be retroactively applied to prior cases without judicial proceedings. Baker is a very smart guy, and in a debatable case I'm choosing to go with him (and my heart).
But that's not how the law works. There was no need to adjudicate the validity of the Blue Earth license because the ruling of the Minnesota Supreme Court that state law prohibited same-sex marriage invalidated it on its face. No marriage of two men could legally exist in Minnesota in 1971 so a marriage license issued to two men was perforce invalid.
The couple attempted on more than one occasion to obtain recognition of the Blue Earth license from federal agencies. They filed a joint federal tax return in 1973 which was rejected by the IRS. They tried again in 2003 and lost the subsequent lawsuit. I have no idea if they attempted to file a joint state return but I would imagine the state return would also have been rejected. Since they offered the Blue Earth license as evidence of a legal marriage in the 2003 case, that license has been adjudicated and rejected as invalid.
I would like nothing better than for the state of Minnesota to retroactively recognize this license back to the date of its issuance or at the very least recognize it as of the date marriage equality takes effect but the likelihood of that happening is nil. For their own protection they really should go get married and save themselves headaches and heartaches later.
Are the articles that talk about the grand jury available online? Can you post or PM me links?
Interestingly, one of the major arguments of the Minnesota Supreme Court was the following: "The institution of marriage as a union of man and woman, uniquely involving the procreation or rearing of children within a family, is as old as the book of Genesis". I'm not sure that logic would hold up very well today. As in so many other ways, Baker was WAY ahead of his time. BTW, according to Minnesota Public Radio, both Baker and McConnell are 70 (not "in their 70s" - don't age them more than they are!). I'd love to see an interview with them today, but they have shunned the public eye for many years (though they are working on a book).
John says...
All due respect to these guys, and I have long been an admirer of their initiative (despite its sticking us with a terrible legal precedent), they are not and never have been legally married. Their first attempt to force Minnesota to issue a marriage license was rejected all the way up to the U.S. Supreme Court. This second attempt, even if no specific legal proceeding voided it, was voided when the Minnesota Supreme Court a month later ruled that state law "does not authorize marriage between persons of the same sex and that such marriages are accordingly prohibited." A grand jury would not have met to address the civil question of whether the Blue Earth County license was valid. It's more likely they were meeting to decide whether to charge the couple with criminal fraud.
This story has been all over the blogosphere today and in other reports the couple says it has no intention of marrying under the new law since they believe themselves to be legally married already. Given that they are both in their 70s, I sincerely hope they change their mind before having to deal with trying to convince anyone else to accept that should it come to a serious illness or death of one of them.
This story has been all over the blogosphere today and in other reports the couple says it has no intention of marrying under the new law since they believe themselves to be legally married already. Given that they are both in their 70s, I sincerely hope they change their mind before having to deal with trying to convince anyone else to accept that should it come to a serious illness or death of one of them.
Congratulations to Minnesotans for moving forward. I know that this has likely put a small pit on an artery wall somewhere in Michele Bachmann's body. But she'll have to learn to live with it.
Looking forward to part 2 and hearing more of the story about these two true pioneers.
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