The long path of same-sex marriage

When the "oyez, oyez, oyez" is cried out by the bailiff heralding oral arguments in the same-sex-marriage case that will come before the U.S. Supreme Court on April 28, the long trek toward marriage equality, which began in Minnesota more than four decades ago, will be in its home stretch.

The court has allotted an unusually long, 2½-hour presentation to hear the litigation — actually a consolidation of 15 separate lawsuits, decided by four federal appellate courts in various states last year.

But the long, winding path to the high court had its starting point right here, in downtown Minneapolis, 45 years ago, at the Hennepin County District Court at Minneapolis City Hall, a few years before completion of the Hennepin County Government Center across Fifth Street. At a time when the concept of same-sex marriage was deemed laughable and of no legal significance, the case was brought by Jack Baker, an openly gay University of Minnesota student, and a partner, after their request for a marriage license was denied on May 18, 1970.

Baker had been elected president of student government at the University of Minnesota, propelled by a flamboyant ad in the Minnesota Daily student newspaper depicting a male candidate in high-heeled shoes. He was re-elected during the litigation in Hennepin County.

The couple sued the county clerk of court, who refused to issue them a marriage license. They asserted various claims under the federal Constitution, asking that the clerk be directed to grant the license.

A Hennepin County district judge dismissed the lawsuit on grounds that state marriage law at the time limited lawful unions to couples of opposite genders. The Minnesota Supreme Court upheld that determination, prodded by an impassioned plea from the Hennepin County attorney's office, which defended the clerk's action, warning the justices of the "extreme and unresolveable difficulty" that would ensue if they were to "undermine the law of the Creator."

The court reasoned that marriage is a "relationship uniquely involving the procreation and rearing of children within a family," an arrangement "as old as the book of Genesis." It therefore unanimously rejected the contention that barring same-sex marriage was "irrational, invidiously discriminatory."

The court, to be sure, did not rely solely on the Bible for its position, pointing to the absence of "support" from any decision of the U.S. Supreme Court. Rebuffing an analogy to the high-court ruling in Loving vs. Virginia, a 1967 decision banning state laws prohibiting interracial marriage, the state justices recognized a "clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

The claimants received an even more inhospitable rejection from the U.S. Supreme Court, which, a year later, flicked away the lawsuit with a single sentence: "The appeal is dismissed for want of a substantial federal question." In short, the case was too insignificant to warrant the attention, time or resources of that august tribunal.

There the law stood, deeming same-sex marriage outside the purview of constitutional protection, for some three decades. As the millennium turned, however, a few states began to legitimize same-sex marriages, some prodded by court rulings, while others came up with statutes allowing a lesser version of "civil unions," bestowing most of the state-sanctioned benefits of marriage without using that buzzword for same-sex couples.

In Minnesota, of course, opponents of same-sex unions tried to convert the statutory prohibition into a constitutional amendment, an effort that was voted down in 2012 by nearly 53 percent of the electorate. That election also ushered in DFL majorities in both chambers of the Legislature which, with the approval of Gov. Mark Dayton, enacted a measure in 2013 defining marriage "as between two individuals, regardless of gender."

Amid these developments, marriage-equality adherents made an attempt to overturn the Baker precedent. One case that showed some promise was brought by a nonprofit organization known as Marry Me Minnesota, which invoked the new approach in May 2013, nearly 40 years to the day after the marriage license was denied to the Baker couple. A half-dozen same-sex couples sued in Hennepin County District Court, like the Baker claimants, to have their marriages recognized. Unlike Baker, they asserted claims only under the state Constitution. But they experienced the same outcome, dismissal of the case by the Hennepin County judge, relying upon the Baker ruling.

The Minnesota Court of Appeals, which did not exist at the time of the Baker case, reversed that ruling, holding that the Baker case did not preclude claims under the state constitutional provisions guaranteeing freedom of association, due process and equal protection, claims that were not addressed in the Baker litigation. The appellate court rejected the contention that Baker was a "binding precedent," noting that since the Baker era a series of Supreme Court cases have indicated that "moral disapproval of a class because of sexual orientation is illegitimate."

The case was sent back to Hennepin County District Court, where it was pending until mid-2013, when the enactment of the same-sex-marriage law made it moot.

The Minnesota experience, rejecting a constitutional prohibition and enacting a statute making same-sex marriage permissible, marked the turning point in the debate over marriage equality. Within a month of Minnesota's enactment in mid-2013, the U.S. Supreme Court issued its landmark ruling in U.S. vs. Windsor, which struck down, on federal constitutional grounds, the provision in the federal Defense of Marriage Act (DOMA) forbidding federal government recognition of same-sex marriages, even in those states where they are permissible.

Although it did not directly address state marriage law restrictions, the Windsor case contained strong language antagonistic to forbidding same-sex marriages, the type of "support" that the Minnesota Supreme Court found lacking in the Baker case. Most notable was the remark by Justice Anthony Kennedy, writing for the court majority, that banning marriage between same-sex individuals does "demean gays and lesbians" and its "purpose and affect" are to "disparage and injure them."

Another case argued the same day as the Windsor lawsuit, a same-sex marriage case from California, returned Baker to the purview of the federal justices. While the court held that the ruling in California prohibiting same-sex marriage could not be challenged because of lack of standing by the objectors, Justice Ruth Bader Ginsburg noted that she didn't "think we could extract much" from the high court's cavalier treatment of the Baker case in 1972 because, at the time, the court had never decided that "gender based classifications get any kind of heightened scrutiny" and that "same-sex intimate conduct was [then] considered criminal" in much of the country.

The Baker case will undoubtedly be at or near the epicenter of the arguments to be made by the respective parties on April 28. Challengers will pick up on Justice Ginsburg's observations of changing times, along with what they hope was a prophetic dissent issued by Justice Antonin Scalia.

A fierce opponent of what he has termed the high court's adoption of the "homosexual agenda," Scalia rhetorically pondered in a 1986 case prohibiting state laws criminalizing sodomy: "What justification can there possibly be for denying the benefits of marriage to homosexual couples?"

Scalia and his colleagues will now squarely face that question as they prepare to hear the batch of cases that they will probably decide before their June adjournment.

Defenders of the same-sex marriage prohibition will counter by pointing to a recent federal court decision noting that the Baker case remains binding precedent, meaning that the court should not revisit its determination long ago that barring same-sex marriage does not merit judicial scrutiny.

The litigation now before the Supreme Court comes at time when same-sex marriage equality is no longer the laughingstock it was at the time the Baker case was moving through the Minnesota judicial system. About 31 states and the District of Columbia, encompassing close to 80 percent of the population of the United States, now allow same-sex marriages. Public opinion polls, which hovered at about one-third support for gay marriage as recently as five years ago, have flipped, particularly among younger people. A slim but growing majority of the total public now supports gay marriages, with an astonishing 80 percent of those 18-29 voicing approval.

It has been a long and difficult road for supporters of same-sex marriage. While the original claimants did not have a prayer, most savants, even some who deride the concept, anticipate that the Supreme Court may very well invalidate the prohibition remaining in effect in the 13 states that still forbid same-sex marriages. They expect the justices to give a favorable answer to the prayers of those who have, in the wake of Baker, been waiting for 45 years.

Marshall H. Tanick is a Minneapolis employment and constitutional law attorney, and has represented multiple parties in same-sex-marriage litigation in Minnesota.