I have
inherited a shared history that does not come from my mother or my father. It
is a rich culture with a devastating history of genocide, discrimination, and
an undying animus aimed against it. If
evolution is descent with modification, gay history is more similar to
Prokaryotic Horizontal Gene Transfer. It is not a history taught by parents to
gaylings but one that is acquired later through life, either by discussion or
literacy or life experience.
It is
an understanding that gay men of certain age have lost nearly all of their
friends to a virus. It’s realizing that governments have and will continue to
round up people like myself and executing them in cruel and humiliating ways. It’s
understanding the struggle just simply to avoid being arrested by the police
for simply existing. It’s knowing that simply existing is a political
statement.
It’s sitting
down and devouring Christopher and His Kind. It’s pretending you’re dating
Frank O’Hara every time you crack open Meditation’s in an Emergency. It’s
empathy for men similar to yourself and the desire to learn about them. It’s
wondering why same-sex marriage is still not permit in many states.
It’s in
this vein of anaphora that I found the cases germane to Perry v. Hollingsworth
and United States v. Windsor.
Perhaps
one of the most famous legal cases in LGBT history is Baker v. Nelson. Claire
Bowes with the BBC wrote a wonderful piece describing the background of the
case. Here is a brief background into the case:
Going public about your
sexual orientation could cost you your home, your job and your family.
Baker and McConnell didn't fit the stereotype. Both in their
late 20s - clean cut and with short, neat hair - Baker was a law student and
McConnell a librarian. They'd been
together for four years when they first applied for a marriage licence in
1970.
This was rejected - on the grounds that they were both men.
But the couple decided to fight. They appealed, and kept on appealing until the
case reached the US Supreme Court. It was the first time the court had been
asked to rule on gay marriage - but it refused to hear the case "for want
of a substantial federal question".
Read
the rest of the article. Here is how the background is described by J. Peterson
writing for the Minnesota State Supreme Court in Baker v. Nelson, 191
N.W.2d 185 (Minn. 1971):
Petitioners, Richard John Baker
and James Michael McConnell, both adult male persons, made application to
respondent, Gerald R. Nelson, clerk of Hennepin County District Court, for a
marriage license, pursuant to Minn.St. 517.08. Respondent declined to issue the
license on the sole ground that petitioners were of the same sex, it being
undisputed that there were otherwise no statutory impediments to a heterosexual
marriage by either petitioner.
The trial court, quashing an alternative writ of mandamus, ruled
that respondent was not required to issue a marriage license to petitioners and
specifically directed that a marriage license not be issued to them. This
appeal is from those orders. We affirm.
While
the Baker case is an interesting read, I feel like it has been discussed and analyzed
and dissected so many times that I cannot add much to it. I have posted a copy of the Minnesota SupremeCourt decision on my website. It is actually a short document that is fairly
easy to understand without much legal reasoning. Most of the decision is quite
familiar. To me it is frustrating but not overly offensive in tone.
If I
ever write on Baker again, it will probably be more about how the US Supreme
Court denied certiorari, and how the right wing lost the legal battle by
campaigning for anti-gay state amendments.
What I
am more interested is in the companion case.
Jack
Baker’s husband, Michael McConnell, was scheduled to become a librarian for the
University of Minnesota. Then he had the audacity to get married… to a man… I
mean can you imagine what temerity and political grandstandingness it takes to
be an outspoken radical by getting married to a consenting human being… I mean
seriously, the balls it takes, and did Mr. McConnell just think the University
would sit there and allow one of its soon to be employees to get married. I
mean for fuck sake who gets married besides communist radicals? So they
shit-canned his ass just like what any Good Christian Institute would do,
right. Because there’s nothing that’ll butch up a limped wristed Nancy quite
like taking away any means of feeding themselves.
All
this joking around has inadvertently made me physically angry about this case
and the severe injustice of it all. I know that it happened 40 years ago and
everything worked out for Mr. McConnell and Mr. Baker but still. I’m going to go drink a beer and come back
when I don’t want to anger-puke anymore over the background of the case. I mean
for fuck sake, getting fired over getting married uggh what the verdammtes
Arschloch… du Arschbackengesicht…
idoitische… blöder Scheißkerl.. kannst mich im Goethe lecken.
Ok.
back. sorry.
The
U.S. 8th Circuit Court of Appeals decide McConnell v. Anderson on October 18, 1971 and is penned by Judge
Stephenson.
In addition to the
allegations above, his complaint asserted that he was a homosexual and that the
Board's resolution not to approve his employment application was premised on
the fact of his homosexuality and upon his desire, as exemplified by the
marriage license incident, specifically to publicly profess his "earnest" belief that
homosexuals are entitled to privileges equal to those afforded heterosexuals.
Umm.. aren't we though. Entitlement to
privileges isn't a bad thing; it’s kinda what America is centered around; that
is freedom. I don’t know why there has to be a use of scare quotes here with
his earnest belief. And furthermore, if you are trying to say UMN acted
properly and in accordance to the law, shouldn't the Court be saying McConnell
wrongly believes that homosexuals are entitled to fewer privileges. Because the
way it is stated, it seems that the Court is suggesting that gays are entitled
to fewer privileges and so what. It’s not like we have a 14th amendment
or an Article IV or anything.
It suffices merely to
stress, by way of summary, that McConnell apparently
is well-educated and otherwise able, possessing both an academic degree and
a master's degree;
Well
this is a hot way to start off. Mr. McConnell is well-educated. That is a fact.
It is not subjective. It is demonstrated by his master’s degree.The use of apparently is just a teenesy bit offensive in this circumstance.
McConnell and a
friend referred to in the record as "Jack Baker" encountered Dr.
Hopp and informed him of their intention
to obtain a license to marry; that during this conversation Dr. Hopp
expressed concern that such an occurrence might well jeopardize favorable
consideration of McConnell's employment application; that about three
hours later on the same day, McConnell and Jack Baker appeared at the
Hennepin County Clerk's office and made formal application for the license;
Well, I
for one am glad that you cleared up how Mr. Baker and Mr. McConnell are
associated. There is nothing condescending or douchey about calling a person’s
husband just a “Friend.” Secondly, McConnell was a librarian, not a stripper at
some Podunk nudy-bar. Getting married is his prerogative. Well according to Loving v. Virginia, 388 U.S. 1 (1967): “The
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men. Marriage is one of the `basic
civil rights of man,' fundamental to our very existence and survival.” It would
appear under this logic that denial of employment from a State Actor would be
arbitrary and capricious. But what did the Warren Court know about the Constitution.
It
is McConnell's position that the Board's decision not to approve his
employment application reflects "a clear example of the unreasoning
prejudice and revulsion some people feel when confronted by a homosexual."
That being so, he argues that the Board's action was arbitrary and capricious
and thus violative of his constitutional rights. We do not agree.
Thanks
asshole. Would you care to elaborate on how the Board of Asshats
Regents’ decision wasn't based on discrimination:
It is, instead, a case in which something more than
remunerative employment is sought; a case in which the applicant seeks employment on his own terms; a case in
which the prospective employee demands, as shown both by the allegations of the
complaint and by the marriage license incident as well, 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.
Once
again fired for getting married. Apparently getting married is socially
repugnant… who knew. Also how was Mr. McConnell seeking employment on his own
terms? What a fucking asshole, what happened did Judge Stephenson forget to up
his Klan membership or something so he had to compensate. I have poured through
many cases, but few have dripped so deeply with contempt and bigotry.
We know of no constitutional fiat or binding principle of
decisional law which requires an employer to accede to such extravagant demands.[8] We are therefore unable fairly to
categorize the Board's action here as arbitrary, unreasonable or capricious.
Once
again man gets married. Man gets fired for getting married. How is that an
extravagant demand? After reading this case, I think I may have been
transported to an alternate dimension. I think it’s call the Planet of the
Douchebags. It’s an upside down world where Douchebags rule men.
Anyway, I want to say congratulations to Mr. Baker and Mr. McConnell. It only took them
40 years to become the first legally married gay couple in America.
Liam '14
