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The Baker/McConnell Story - Part 2 - Soul Mates and Social Activism

Posted on August 1, 2013 at 8:40 PM

By Dennis Stone


They met at a Halloween party in Norman, Oklahoma in 1966. Jack Baker was outgoing, passionate, overtly political. Michael McConnell was more introverted and analytical, but also had a quiet passion for social justice. They were perfect for each other, and they were soul mates.


A few months later, in March of 1967, Baker asked McConnell to “join their lives together”. McConnell accepted, though he had one condition: someday they would be legally married.


The couple moved to Minneapolis after Baker, an Air Force veteran, was fired from his job at Tinker Air Force Base for being gay. McConnell obtained a job at the University of Minnesota Library, and Baker became a law student at the school. In 1969 Baker joined the gay activist group FREE – “fight repression of erotic expression” – and soon became its president. FREE was officially recognized by the University as a campus organization in 1969, only the second gay group officially recognized in the country by a university. (A group at Columbia University was the first.) FREE had some notable success in getting Twin Cities businesses to adopt anti-discrimination policies, and helped create a university guideline requiring non-discrimination policies for companies recruiting on campus.


As I indicated in my first story, Baker and McConnell’s quest for marriage began in 1970 with their first application for a license. The quest was time consuming and led to several court challenges. When he was asked why they pursued the case so diligently, Baker said “the love of my life insisted on it.” In the first article I linked to a video of their appearance on the “David Susskind Show.” They also were featured on the influential and popular “Phil Donahue Show”, and in a major story in “Look” magazine.


The "Look" magazine story.


But there was a lot more going on in their lives than the marriage quest. In 1971 Baker was elected president of the student government, a notable achievement for a gay person. His election was six years before Harvey Milk was first elected. The next year he was re-elected, the first time a student body president had been re-elected in the history of the university.


McConnell, meanwhile, was encountering employment discrimination in his career. The library had promoted him to be the head of the cataloguing division. However, after the notoriety created by the marriage application, the Board of Regents rescinded the offer and then fired him – solely because he was openly gay. Much of the university was remarkably gay friendly in 1971, but the Board Of Regents was not. Said one of them: “homosexuality is about the worst thing there is.”


McConnell sued, and won in district court. The university appealed and won. The court chided McConnell for pursuing “an activist role in implementing his controversial ideas concerning the social status to be accorded homosexuals and thereby to foist tacit approval of the socially repugnant concept upon his employer." The student body was strongly on McConnell’s side. A poll asking if the university was justified in firing him for being gay resulted in 81% of the students saying “no”, while only 10% said “yes.”


McConnell’s employment story has a happy ending. He was hired by the Hennepin County library system, where he had a long, successful career, retiring with a commendation in late 2010. In 2012 the president of the university issued a statement calling McConnell’s treatment 40 years earlier “reprehensible”, and apologizing for it. McConnell accepted the apology.


In 1972 Baker led the Gay Rights Caucus of the state Democratic Party, and that year the party included in its platform language calling for marriage equality. That was remarkable for 1972, and was the first time one of the major parties had included marriage equality in its platform.


A campaign poster for Baker's run for student government president.


Baker graduated from law school in 1972, passed the bar exam and became a lawyer. Even that was not without controversy. He was forced to go before the State Board of Law Examiners because of allegations that he had fraudulently obtained his marriage license. The board chose not to act against him. As a lawyer he ran for Minneapolis City Council, and at least twice for the State Supreme Court. The general public was not as liberal as the University of Minnesota student body, and he lost those races.


Baker and McConnell more or less retreated from the public eye in 1980, and have lived a mostly private life since then. They did make news in 2003 when they submitted a revised 2000 tax return to the IRS, filing jointly as a married couple. The IRS rejected the amended return. Baker and McConnell had supplied the Blue Earth County marriage license as proof, but the IRS said that DOMA prevented them from accepting it, even if it were considered to be legal. McConnell sued over the issue, but lost the suit and the appeal.


Many observers have said that the 1972 court loss was detrimental to gay marriage rights because it set a precedent for other states to follow. While it did set a precedent, it’s hard to imagine any state courts looking at the issue in the succeeding years. (Hawaii finally did look at it in 1993, and ruled in favor of equality.) I agree with Dale Carpenter, a constitutional law professor at the U. of M. law school. He acknowledged the precedent, but added: “You could also say they blazed a trail for others to follow. [They helped establish] the very idea that a same-sex marriage could exist. Legally it was a setback -- culturally and politically it was a planting of a seed. It's the way change happens. Somebody goes out there, takes a hit and others take up the banner after them."


Jack Baker said that the inevitability of gay marriage was apparent to him as a first year law student in 1970. Talk about being ahead of your time!

Categories: History Lessons

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3 Comments

Reply John
4:02 PM on August 3, 2013 
Dennis Stone says...
But Baker v Nelson was solely and entirely a Minnesota case. It theoretically should have nothing to do with cases in other states, and certainly not federal cases. Yes, it could be referenced as an indication of how a court in another state ruled, but how could it be precedent for another state?

Baker raised federal constitutional questions. Plaintiffs asserted that failing to issue them a marriage license violated the First, Eighth, Ninth and Fourteenth Amendments. The Minnesota Supreme Court denied the Ninth and Fourteenth Amendment claims largely on the supposed role of marriage in promoting procreation. The First and Eighth Amendment claims were denied without comment. The US Supreme Court dismissed the appeal "for want of a substantial federal question". Because of the way the case came to SCOTUS it is binding precedent for the entire country. Per the Supreme Court, the fundamental right to marry protected by the US Constitution does not extend to same-sex couples. Until that ruling is specifically overturned (or a constitutional marriage equality amendment is passed) it remains a binding ruling of the Supreme Court and no court below it may find to the contrary when considering a case presenting the same circumstances. In considering marriage challenges, no court may rule that it violates the First, Eighth, Ninth or Fourteenth Amendments because the Supreme Court has already said that it doesn't. The Windsor case was decided based on the Fifth Amendment. Other marriage cases were decided under the Spending Clause or the Tenth Amendment (analyses which were later partially rebutted by higher courts).

Arguments continue over how much value Baker still has as precedent. As I mentioned, judges in various of the marriage cases went to some lengths to explain why the issues in the cases before them were different enough from the issues in Baker that Baker did not apply. Others have found that the 40 years of general changed circumstances and changes in the jurisprudential landscape render Baker inapplicable. Still others have concluded that Baker does control. Until such time as SCOTUS takes up another marriage case that specifically addresses it, the precedent of Baker has to be considered at the starting point of any such case.

From a legal standpoint, the Hawaii case (Baehr v. Levin, later Baehr v. Miike) had no meaning with regards to the precedential value of Baker because Baehr was argued and decided under the Hawaii state constitution and did not raise any federal question to which Baker might be applied.

Three other states did consider marriage equality between Minnesota and Hawaii: Kentucky (Jones v. Callahan, 1973); Washington (Singer v. Hara, 1974); and Pennsylvania (De Santo v. Barnsley, 1984). The first two involved denial of marriage licenses and the third asked whether a same-sex couple could form a common-law marriage. My cursory research into those cases indicates that none of them raised federal constitutional questions and none of them relied on Baker but I only have very lightly skimmed the decisions. All three did in fact rule against marriage equality and you're probably right that no state would have ruled differently on the issue any earlier than Hawaii's did.

I'm not criticizing Baker and McConnell's actions; I'm talking about them in terms of the factual. I agree 100% that seeing these two on a national forum laying out the case for recognizing their marriage undoubtedly had a positive impact on a lot of people. In discussing the facts of their legal case I am in no way impugning their moral victories. Unfortunately those moral victories aren't going to mean a lot in the hospital waiting room or at the Social Security office or in the morgue. Their securing their rights now when it is unquestionably legal doesn't diminish their moral victory in the slightest.
Reply Dennis Stone
2:21 PM on August 3, 2013 
But Baker v Nelson was solely and entirely a Minnesota case. It theoretically should have nothing to do with cases in other states, and certainly not federal cases. Yes, it could be referenced as an indication of how a court in another state ruled, but how could it be precedent for another state?

My main point remains though. It's extremely hard to imagine another state taking the issue seriously prior to 1993. And then the Hawaii case would mitigate any force that the Baker case had, being more recent. Therefore, the bottom line for me is that I don't think losing the case actually set the cause back since no other state would have ruled differently if Baker had never occurred. BUT, the Baker case dramatically raised the consciousness of society about the whole issue of homosexuality. Imagine the millions watching Susskind and Donahue and seeing real live gay people for the first time. People who really didn't seem that much different from other young men they knew, and certainly weren't evil, furtive child abusers. So in the end the whole thing was a big positive in my eyes.

John says...
Because I'm that guy: Several state courts have looked to Baker v. Nelson in examining challenges to their state's marriage inequality. However, since the plaintiffs were raising state and not federal questions Baker wasn't binding on them. Hawaii's majority in the 1993 marriage case didn't mention Baker but the dissent did.

There have also been several federal cases which cited Baker, mostly recognizing it as binding precedent. A few opinions, including Judge Walker's in the DOMA case, distinguished the case from Baker by noting that the specific issues before them were not identical to those raised in Baker. The appellate court in Windsor for example distinguished the case from Baker since Windsor attacked a federal statute while Baker concerned a state statute. SCOTUS did not overrule or even mention Baker in its Windsor decision so it remains binding precedent.
Reply John
10:12 PM on August 1, 2013 
Because I'm that guy: Several state courts have looked to Baker v. Nelson in examining challenges to their state's marriage inequality. However, since the plaintiffs were raising state and not federal questions Baker wasn't binding on them. Hawaii's majority in the 1993 marriage case didn't mention Baker but the dissent did.

There have also been several federal cases which cited Baker, mostly recognizing it as binding precedent. A few opinions, including Judge Walker's in the DOMA case, distinguished the case from Baker by noting that the specific issues before them were not identical to those raised in Baker. The appellate court in Windsor for example distinguished the case from Baker since Windsor attacked a federal statute while Baker concerned a state statute. SCOTUS did not overrule or even mention Baker in its Windsor decision so it remains binding precedent.