I was at the Library of Congress the other day, doing some research in Justice Harry A. Blackmun’s collected papers there (an amazing gift that keeps on giving to anyone interested in the history of the Supreme Court in the last three decades of the 20th century). Thinking about the same-sex marriage cases that the court will hear next week, it occurred to me to see whether Justice Blackmun, who annotated nearly every piece of paper that came across his desk, had recorded any thoughts about a case that arrived at the court in 1971, Baker v. Nelson.
It was the first appeal to reach the court claiming a right to same-sex marriage. Jack Baker was a student at the University of Minnesota, where he was a well-known gay-rights activist, when he and his partner, James McConnell, showed up at the county clerk’s office to apply for a marriage license. The year was 1970. Minnesota law set out the logistics for obtaining a license and marrying in the state, but contained no explicit requirement that members of the couple be of the opposite sex. Nonetheless, and not surprisingly, the county clerk turned them down.
Represented by the Minnesota chapter of the American Civil Liberties Union (the national organization refused to support them), the two men filed suit in state court. Among their claims was that recent Supreme Court decisions, including Loving v. Virginia, which granted a constitutional right to marry across racial lines, and Griswold v. Connecticut, which gave married couples the right to use contraception, had built a constitutional framework within which the benefits of marriage couldn’t be withheld based on society’s view of the appropriate sex of the would-be marriage partners.
They lost. The Minnesota Supreme Court, while acknowledging that the state’s law made no reference to gender in describing marriage, concluded that the law “employs that term as one of common usage, meaning the state of union between persons of the opposite sex,” an implied definition “as old as the Book of Genesis.” Reviewing the couple’s constitutional arguments, the court said: “We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court.”
Washington was the next and final stop. Under the law at the time (since repealed) governing the Supreme Court’s jurisdiction over appeals from state-court decisions, Baker v. Nelson reached the justices as a mandatory appeal. Unlike the great majority of cases, over which the Supreme Court has complete discretion and as to which a denial of review has no legal meaning, the court had to take some kind of action on a mandatory appeal. On Oct. 10, 1972, it issued a one-sentence decision in Baker v. Nelson: “The appeal is dismissed for want of a substantial federal question.” The ruling was unanimous.
Dismissal “for want of a substantial federal question” was the formulaic way of saying the equivalent of “there is so little to this case that we don’t even have to bother hearing it.” Such a disposition has been treated by the legal system as not quite a Supreme Court decision but as considerably more than nothing, a judgment on the merits that carries a measure of precedential weight. Consequently, groups opposing same-sex marriage invariably cite Baker v. Nelson today as binding precedent that makes same-sex marriage a constitutional nonstarter, while judges struggle with what, if anything, to make of the old case. The answer, of course, is up to today’s justices.
Harry Blackmun was in his first full term as a justice when the appeal reached the court. Fifteen years later, he would publish a powerful dissenting opinion in Bowers v. Hardwick, the decision that rejected as “facetious” the claim that the Constitution protects gay relationships from criminal prosecution. He had retired by the time the court, 17 years later in Lawrence v. Texas, repudiated Bowers and held, in Justice Anthony M. Kennedy’s majority opinion, that gay men and lesbians are “entitled to respect for their private lives” as a matter of constitutional due process.
There’s no doubt where Justice Blackmun would have been by the time of Lawrence in 2003, but where was he when Baker v. Nelson came to his attention? The memo from his law clerk that I found in his files described the case in one page. On the second page, there was a section called “Discussion.” In its entirety, this was the discussion: “Dismiss for want of a substantial federal question.” Justice Blackmun, in his distinctive handwriting, noted his agreement with this recommendation by the abbreviation for that disposition: DWQ. That was it. He was, in other words, where almost all the rest of the country was when it came to same-sex marriage: there was nothing to discuss.
The point of recounting this history at a moment when talk of same-sex marriage seems to be everywhere is to underscore how much has changed without the Supreme Court’s ever addressing the issue directly. As a further reminder of how much has changed, consider this:
The local fame that came Jack Baker’s way after the failed marriage-license application made him even more of a campus figure at the University of Minnesota than he already was as the founder of a gay student organization. He was elected and then re-elected student body president and went on to graduate from law school. His partner was not so fortunate. Mr. McConnell wanted to be a librarian, and had been offered a job at the library of the University of Minnesota’s St. Paul campus. When news about the marriage-license case broke, the university rescinded the offer. Mr. McConnell sued in Federal District Court and won. But the United States Court of Appeals for the Eighth Circuit overturned that ruling in an opinion by its chief judge, Roy L. Stephenson.
While noting that Mr. McConnell “apparently is well-educated and otherwise able” (he had an advanced degree and relevant job experience), Judge Stephenson observed that the plaintiff was not seeking simply “clandestinely to pursue his homosexual conduct.” Presumably, staying in the closet might have been acceptable. But the court said the problem was that Mr. McConnell was asking for “the right to pursue an activist role in implementing his unconventional ideas concerning the societal status to be accorded homosexuals and, thereby, to foist tacit approval of this socially repugnant concept upon his employer, who is, in this instance, an institution of higher learning.” The opinion, McConnell v. Anderson, concluded: “We know of no constitutional fiat or binding principle of decisional law which requires an employer to accede to such extravagant demands.”
The Supreme Court declined to hear Mr. McConnell’s appeal, and the case is almost entirely unknown today. Whatever the court finally says about the marriage cases it will hear next week – the California Proposition 8 case, Hollingsworth v. Perry on Tuesday and United States v. Windsor, the Defense of Marriage Act case, the following day – it’s a sure bet that the majority opinions will sound nothing like the unanimous Eighth Circuit opinion back then.
With a majority of the public now supporting same-sex marriage (overwhelmingly among Democrats and young people, and even by a slim margin of Republicans under the age of 50), those who believe, as I do, that the Constitution acquires meaning outside the courts are seeing powerful validation. Yet it’s validation with an interesting footnote. When Theodore Olson and David Boies filed their lawsuit against Proposition 8 four years ago, they were met with deep skepticism and even anger from the established gay-rights groups that had refrained from just such litigation. It was too soon to present the Supreme Court with such a big target, the mainstream thinking ran. Let the issue continue to develop. Don’t invite backlash.
In fact, I think it’s clear that the lawsuit has had the opposite effect, speeding and enhancing public understanding and support for marriage equality. This is due in part to some unanticipated contingencies during the four years it has taken from the filing of the case to next week’s Supreme Court argument. One was the decision by Federal District Judge Vaughn Walker to hold a trial rather than to decide the case on summary judgment, resulting in a full public airing of the arguments pro and con. Another was the state’s refusal to defend Proposition 8, resulting in a long excursion into the procedural thicket on the question of whether supporters of the proposition have standing to carry on the appeal in the state’s place. It’s during these four years that the trajectory of same-sex marriage has risen so dramatically. The litigation put the issue on the screen, giving people who had simply not engaged with it previously reason to think it through and to see it through the eyes of their friends, neighbors, colleagues, and – as Senator Rob Portman, Republican of Ohio, reminded us all the other day — even their children.
I happen to think the Proposition 8 supporters don’t have standing, and that the justices will dismiss the appeal without reaching the merits. That would leave intact Judge Walker’s 2010 decision that Proposition 8 is unconstitutional. But suppose I’m wrong and that the court goes on to rule that it didn’t violate any constitutional right for California voters to ban same-sex marriage. Proposition 8 passed narrowly back in 2008, and clearly would fail miserably if put to the voters today. A new referendum, to repeal Proposition 8 and replace it with a state constitutional recognition of same-sex marriage, would prevail easily and quickly. One way or another, with or without the Supreme Court, marriage equality is coming to California.
Jack Baker and James McConnell, who had the nerve to talk about marriage before even people of good will like Harry Blackmun were able to hear them, have grown old watching the issue evolve. Now in their early 70s, they still live in Minnesota, and more than 40 years later, they are still a couple.
