While the Baehr v. Miike case is a watershed moment in terms of case law regarding same-sex marriage, there is a lesser-known case from Minnesota that struck down an attempt to gain marriage recognition as simply unimaginable. However, if you haven’t read the post just prior to this one, you really need to read it first.
Baker v. Nelson was decided by the Minnesota Supreme Court in October 1971, and is probably the first ever case in which a gay couple sued to have their relationship recognized as a marriage.
The Minnesota court’s decision was very mundane in that it relied on basic dictionary definitions of marriage to reach its conclusion, as well as referring to what the current forms offered by the state had written on them.
“It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense,” wrote the Minnesota court. “The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such as ‘husband and wife’ and ‘bride and groom.’”
Very unimaginative. The court then dismissed without discussion any challenges that were made regarding the Ninth and Fourteenth Amendments of the U.S. Constitution. It was, after all, a state court.
“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis,” wrote the court. Wow. (So is slavery). And the court cited the U.S. Supreme Court decision Skinner v. Oklahoma to support the assertion that “Marriage and procreation are fundamental to the very existence and survival of the race.” Of course, the Skinner case really had nothing to do with marriage; it was a case about whether a state could sterilize habitual offenders.
Ironically, the Minnesota court rejected the petitioner’s argument that the U.S. Supreme Court case of Loving v. Virginia applied, a case that struck down prohibitions against interracial marriage. It’s ironic because of the passage from Loving that the Minnesota court quoted: “To deny this fundamental freedom (of marriage) on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.”
Granted, denying a marriage license on the basis of the race of the applicants is truly offensive, but that’s not what is relevant in the quotation. What is critical is that the court called the ability to select one’s spouse a “fundamental freedom.” That’s a pretty solid precedent given the fact that it was written in 1967 and hasn’t been questioned since.
So for almost 20 years, no other case that garnered any attention came before a judge seeking recognition of same sex marriages. But on Dec. 20, 1990, two lesbian couples and one gay couple requested marriage licenses in Hawaii, a request that went denied. The couples filed a complaint May 1, 1991, initiating the Baehr case. The case, then known as Baehr v. Lewin, wound up in the Hawaii Supreme Court after the couples lost the first round through a series of court filings. But the state supreme court sent the case back for trial with some specific instructions:
“On remand, in accordance with the ‘strict scrutiny’ standard, the burden will rest on [Defendant] to overcome the presumption that HRS 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”
That order from the Hawaii Supreme Court, that the case must be judged according to the strict scrutiny standard, carried huge significance. The “strict scrutiny” test is the highest standard to meet in federal law. In the past, same-sex issues were often judged according to the “rational basis” rule, which means that if the rule has a rational basis – a rational reason, so to speak – for its existence, then it meets the requirement of the law. But when the Hawaii Supreme Court said this case must be judged according to the strict scrutiny standard, the bar was set very high indeed. It was almost as if the high court was saying, “we already think the rule is onerous on same-sex couples, but just to be sure, we’d like to hear the state’s justification for the statute.” The state was so shocked by this order, it requested a clarification, which the high court granted with the following statement on May 17, 1993:
“Because … the circuit court erroneously granted Lewin’s motion for judgment on the pleadings and dismissed the plaintiffs’ complaint, the circuit court’s order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the ‘strict scrutiny’ standard, the burden will rest on [Defendant] to overcome the presumption that HRS 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”
In this clarification, the high court was reprimanding the lower court by saying that such an important case of civil rights should have been decided only after a trial, not through a series of pleadings. And not just any trial; rather, the judge must apply the highest legal standard there is to decide the case.
That trial eventually began Sept. 10, 1996. Just prior to the trial’s beginning, the state filed its case and laid out its legal position as to why the state of Hawaii should refuse to issue a marriage license to a same-sex couple:
“The State of Hawaii has a compelling interest to promote the optimal development of children. . . . It is the State of Hawaii’s position that, all things being equal, it is best for a child that it be raised in a single home by its parents, or at least by a married male and female. . . . The marriage law furthers the compelling state interest of securing or assuring recognition of Hawaii marriages in other jurisdictions. . . . The marriage law furthers the compelling state interest in protecting the public fisc (sic) from the reasonably foreseeable effects of approval of same-sex marriage.(emphasis added)”
Yes, the public had to be protected from the “reasonably foreseeable effects” of allowing same-sex marriage. And what might those effects be? Based on the case the state presented at trial, “reasonably foreseeable effects” turned out to be a euphemism for the notion that same-sex marriage is so bad, that children will be irreparably harmed.
I’ll pick up some of the details from the trial in my next posting.
Baker v. Nelson was decided by the Minnesota Supreme Court in October 1971, and is probably the first ever case in which a gay couple sued to have their relationship recognized as a marriage.
The Minnesota court’s decision was very mundane in that it relied on basic dictionary definitions of marriage to reach its conclusion, as well as referring to what the current forms offered by the state had written on them.
“It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense,” wrote the Minnesota court. “The term is of contemporary significance as well, for the present statute is replete with words of heterosexual import such as ‘husband and wife’ and ‘bride and groom.’”
Very unimaginative. The court then dismissed without discussion any challenges that were made regarding the Ninth and Fourteenth Amendments of the U.S. Constitution. It was, after all, a state court.
“The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis,” wrote the court. Wow. (So is slavery). And the court cited the U.S. Supreme Court decision Skinner v. Oklahoma to support the assertion that “Marriage and procreation are fundamental to the very existence and survival of the race.” Of course, the Skinner case really had nothing to do with marriage; it was a case about whether a state could sterilize habitual offenders.
Ironically, the Minnesota court rejected the petitioner’s argument that the U.S. Supreme Court case of Loving v. Virginia applied, a case that struck down prohibitions against interracial marriage. It’s ironic because of the passage from Loving that the Minnesota court quoted: “To deny this fundamental freedom (of marriage) on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.”
Granted, denying a marriage license on the basis of the race of the applicants is truly offensive, but that’s not what is relevant in the quotation. What is critical is that the court called the ability to select one’s spouse a “fundamental freedom.” That’s a pretty solid precedent given the fact that it was written in 1967 and hasn’t been questioned since.
So for almost 20 years, no other case that garnered any attention came before a judge seeking recognition of same sex marriages. But on Dec. 20, 1990, two lesbian couples and one gay couple requested marriage licenses in Hawaii, a request that went denied. The couples filed a complaint May 1, 1991, initiating the Baehr case. The case, then known as Baehr v. Lewin, wound up in the Hawaii Supreme Court after the couples lost the first round through a series of court filings. But the state supreme court sent the case back for trial with some specific instructions:
“On remand, in accordance with the ‘strict scrutiny’ standard, the burden will rest on [Defendant] to overcome the presumption that HRS 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”
That order from the Hawaii Supreme Court, that the case must be judged according to the strict scrutiny standard, carried huge significance. The “strict scrutiny” test is the highest standard to meet in federal law. In the past, same-sex issues were often judged according to the “rational basis” rule, which means that if the rule has a rational basis – a rational reason, so to speak – for its existence, then it meets the requirement of the law. But when the Hawaii Supreme Court said this case must be judged according to the strict scrutiny standard, the bar was set very high indeed. It was almost as if the high court was saying, “we already think the rule is onerous on same-sex couples, but just to be sure, we’d like to hear the state’s justification for the statute.” The state was so shocked by this order, it requested a clarification, which the high court granted with the following statement on May 17, 1993:
“Because … the circuit court erroneously granted Lewin’s motion for judgment on the pleadings and dismissed the plaintiffs’ complaint, the circuit court’s order and judgment are vacated and the matter is remanded for further proceedings consistent with the plurality opinion. On remand, in accordance with the ‘strict scrutiny’ standard, the burden will rest on [Defendant] to overcome the presumption that HRS 572-1 is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.”
In this clarification, the high court was reprimanding the lower court by saying that such an important case of civil rights should have been decided only after a trial, not through a series of pleadings. And not just any trial; rather, the judge must apply the highest legal standard there is to decide the case.
That trial eventually began Sept. 10, 1996. Just prior to the trial’s beginning, the state filed its case and laid out its legal position as to why the state of Hawaii should refuse to issue a marriage license to a same-sex couple:
“The State of Hawaii has a compelling interest to promote the optimal development of children. . . . It is the State of Hawaii’s position that, all things being equal, it is best for a child that it be raised in a single home by its parents, or at least by a married male and female. . . . The marriage law furthers the compelling state interest of securing or assuring recognition of Hawaii marriages in other jurisdictions. . . . The marriage law furthers the compelling state interest in protecting the public fisc (sic) from the reasonably foreseeable effects of approval of same-sex marriage.(emphasis added)”
Yes, the public had to be protected from the “reasonably foreseeable effects” of allowing same-sex marriage. And what might those effects be? Based on the case the state presented at trial, “reasonably foreseeable effects” turned out to be a euphemism for the notion that same-sex marriage is so bad, that children will be irreparably harmed.
I’ll pick up some of the details from the trial in my next posting.
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