Michael McConnell and Jack Baker

Fight Repression of Erotic Expression

Gay activists from Minnesota Free University created a campus organization at the University of Minnesota to be run by and for gay students. They called it Fight Repression of Erotic Expression (FREE), which the University recognized in 1969, shortly before the Stonewall riots, and elected first-year law student Jack Baker as president. It was the second such organization in the United States, following the Student Homophile League recognized by Columbia University in 1967.

"FREE is the first student gay organization to gain recognition in the upper mid-west," the organization's news release proclaimed. "Its leaders believe it to be the first such organization on a Big Ten campus."

Interest expanded. Members soon demanded marriage equality. One member was eager to educate his parents. For credit, he selected a program requested by Dave Moore, then a popular announcer on WCCO-TV. The student was proud of what ultimately aired on Sunday, 30 September 1973.

Moving openly and aggressively, members of FREE slowly transformed Minneapolis into a "mecca for gays". Five major companies were questioned. That led to a wider survey. Three doing business in the Twin Cities area responded quickly, insisting that they do not discriminate against homosexuals in their hiring policies. Honeywell responded differently: "We would not employ a known homosexual."

FREE pressed for equality and crafted a new University policy. The Administrative Committee approved a final draft 22 May 1972. Complaints could now be filed with the Campus Committee on Placement Services for discrimination by employers recruiting on campus. When challenged, Honeywell admitted that its objection to known homosexuals "still holds." Facing expulsion from University facilities, Honeywell "quietly reversed its hiring policy". No longer would it refuse to employ people because they are gay.

Gay Pride

Gay Pride, begun by FREE, swept the world. Everywhere, men and women became eager to abolish discrimination against themselves or their friends.

Student Body President

Early in 1971, Baker campaigned to become president of the Minnesota Students Association at the University of Minnesota's Twin Cities campus. His theme, Student Control over Student Concerns, urged students "to search out a new self-respect." With a focus on gay pride, he used posters that grabbed attention to get elected, then re-elected student body president.

"We need a student on the Board of Regents," he insisted. Why wait for a change in the law? "The Regents already have the power to appoint students to the committees of the Board or Regents." The student newspaper endorsed his position.

A total of 6,024 ballots were cast in the election, topping the previous record of 5,049 cast in the 1958 election. Baker captured 2,766 votes; two competitors and write-in candidates split the remainder. He credited victory to a new "sophistication" among students. "Sexuality ought not and did not play any party in the campaign".

As student body president, Baker continued to question why students lacked input to decisions made by the Board of Regents. Some regents relented, forcing the Board to act. Soon thereafter, students were invited to participate. Several were appointed, one non-voting member to each committee. He started a student-run bookstore. Concurrently, he proposed that the University purchase a local FM radio station to be operated by students as a public communications tool for the University. Finally, he created a corporation owned by MSA to build needed housing for students.

Having promised to complete projects already started, Baker won re-election easily in 1972. With "3,035 votes out of a record turnout of 7,441", it was "the first time in the 121-year history of the University that a student body president has been re-elected." A focus on campus issues attracted 41% of the vote in a 3-way race.

Lawsuit to obtain a licence

In 1970, Minnesota's statutes did not explicitly forbid marriage between two adult men. Baker, a law student, and McConnell argued that "what is not forbidden is permitted" when they applied for a marriage license in Minneapolis on May 18. The clerk of the Hennepin County District Court, Gerald Nelson, said he had "no intention of issuing a marriage license". He then denied the request on the sole ground that the two were of the same sex.

The couple asked a district court to order Nelson to issue a license. "[L]unatic fringe" is how legislator Allan Spear, a University of Minnesota professor, described them to reporters. All claims were dismissed.

They appealed the district court's decision to the Minnesota Supreme Court. In a brief opinion issued on October 15, 1971, the state's highest court affirmed the trial court's dismissal. Its opinion said that: "The institution of marriage as a union of man and woman, uniquely involving the procreation or rearing of children within a family, is as old as the book of Genesis". Chief Justice Robert J. Sheran, and all Associated Justices, concurred.

Rules in effect allowed the Minnesota Civil Liberties Union to appeal Baker v. Nelson directly to the U.S. Supreme Court. [Full text of legal briefs are available online.] The clerk for Justice Harry Blackmun crafted a one-sentence rejection because "I just [didn't] think the court was ready at the time to take on the issue." Though approved unanimously, lower courts debated whether the quick dismissal of Baker v. Nelson must be overruled. Yes, the high court concluded In 2015. "The Court now holds," it said, "that same-sex couples may exercise the fundamental right to marry."

The case received extensive media attention, including appearances on the Phil Donahue Show, and Kennedy & Co. (WLS-TV, Chicago IL). On the David Susskind Show (New York, NY), Baker was blunt. "We're gonna win eventually, not this time but maybe the next time around." Baby Boomers from around the world responded.

Gay marriage saw "little or no enthusiasm" from the American Civil Liberties Union. Gay historians ignored the midwest because they "personally had political objections to gay marriage activism." According to Thomas Kraemer, "gay marriage activism was rejected by early gay activists [in New York City] who were mostly interested in sexual freedom and gay liberation." Perhaps that explains why the Minnesota Civil Liberties Union was alone in its defense of gay marriage.

A civil right

Jack Baker addressed members of the Ramsey County Bar Association in 1971. Same-sex marriages are "not only authorized by the U.S. Constitution," he said, but are also mandatory. "I am convinced that same-sex marriages will be legalized in the United States."

In 1972, Baker addressed a forum of more than 2,000 at the University of Winnipeg. "We maintain," he explained, "that it’s a matter of equity and fair play that if a state is going to give childless heterosexual couples rights and benefits under the law, they can’t complain when childless same-sex couples ask for the same rights." His arguments persuaded Richard North to begin a "fight to be married" with Chris Vogel. Persistence led to equal marriage in Canada 30 years later.

Same-sex marriage is "the civil rights issue of our times,” said NAACP President Benjamin Todd Jealous during a news conference at the organization’s national headquarters. "The outcome was never in doubt," Jack Baker told the Associated Press in 2012 "because the conclusion was intuitively obvious to a first-year law student."

Adoption, name change, marriage

In early August 1971 McConnell legally adopted Baker in a Hennepin County court. When he approved the request, Judge Lindsay Arthur said, "regardless of popular conception, adoption is not limited to children". The decree changed Baker's legal name to Pat Lyn McConnell, though he continued to use the name Jack Baker.

In mid-August 1971, Baker and McConnell took up residence with a friend in Blue Earth County and applied to the District Court in Mankato for a license to marry, which was granted once the waiting period expired. Rev. Roger Lynn, a Methodist minister, solemnized their marriage on September 3. The Hennepin County Attorney argued the license was invalid because it failed to meet the law's requirement that a license be issued in the bride's county of residence. He convened a grand jury, which "studied the legality of the marriage but found the question not worth pursuing."

The Family Law Reporter disagreed with the County Attorney. Because the marriage was consistent with Minnesota law, it argued, the "federal constitution prohibition against ex post facto laws, U.S. Constitution Article l, Section 9(3), forbids the imposition of punishment for past conduct lawful at the time it was engaged", and hence the Minnesota high court's decision does not reach back to Baker and McConnell since the two were married "a full six weeks" before that decision.

The New York Times confirmed in 1973 what Thomas Kraemer, a retired professor at Oregon State University, later concluded in 2013: a student group recognized by the University of Minnesota (1969) hosted "the first same-sex couple in history to be legally married". Records at The National Archives certify that "McConnell and Baker’s marriage license [from Blue Earth County, MN] was never revoked. They are still married and have been for the last forty two years." It was the first lawful same-sex marriage in the United States.

Attempts to claim veteran's benefits were rejected by federal courts. As DOMA confirmed, a refusal by the federal government to recognize a lawful marriage is not the same as a decision to invalidate.

They persisted and filed a joint tax return for 1973, which the Internal Revenue Service rejected. The next year, McConnell claimed Jack Baker as a dependent and took a deduction on his tax returns as head of household from 1974 through 2004. He lost the deduction in 2005, after the federal law was amended to restrict the deduction to an adopted child under the age of 19.

Employment discrimination

The University Librarian had offered Michael McConnell the position of Head of the Cataloging Division at the library on the St. Paul campus. After he applied for a marriage license, regent Daniel Gainey insisted that "homosexuality is about the worst thing there is." The Board of Regents rescinded the offer. More than 80% of the student body disapproved of the regents' action.

McConnell sued to gain the job that was offered. He prevailed in federal District Court. The University appealed to the Eighth Circuit Court of Appeals, which concluded that the University did not restrict free speech. Instead, the court ruled, it was McConnell who wanted "to pursue 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."

McConnell was later hired by the Hennepin County Library, a system of 41 facilities. He rose through the ranks during a distinguished career of 37 years. When he retired as a Coordinating Librarian at the end of 2010, the Board of Commissioners awarded him a commendation

Pain for 42 years brought a statement of regret from President Eric Kaler. He called McConnell’s treatment reprehensible, regrets that it occurred and says the university’s actions at that time were not consistent with the practices enforced today at the university. McConnell responded: "Thank you, President Kaler, for offering to remove the cloud that shamed the University of Minnesota. Your offer is accepted."

Career in law and politics

In June 1972, Baker led the DFL Gay Rights Caucus at the State Convention of the Minnesota Democratic–Farmer–Labor Party. We advocate "legislation defining marriage as a civil contract between any two adults", the delegates added to their party platform. This was the first time a major United States political party encouraged support for marriage equality.

In December 1972, Baker graduated from the University of Minnesota Law School. When he applied to take the bar examination, questions were raised about whether the procurement of his 1971 marriage license amounted to fraud. At a hearing, Baker was defended by the Minnesota Civil Liberties Union. The State Board of Law Examiners reviewed the facts and concluded that he was entitled to take the bar exam. He was later admitted to the bar.

Baker ran more than once as a candidate for Associate Justice of the Minnesota Supreme Court. Each time, he challenged the incumbent who also served as head of the Minnesota News Council (MNC). Baker cited the Code of Judicial Conduct—"A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law."—and said it prohibited a sitting judge from serving on the MNC.

In 2002, Baker opposed the re-election of Paul H. Anderson. In the Plebiscite mailed to more than 14,900 attorneys in Minnesota, he questioned the special relationship between the Minnesota Supreme Court and MNC. Baker won 30% of the votes. The practice of a sitting judge mediating a private dispute regarding the conduct of the press ended shortly thereafter and the MNC ceased to exist in 2011.

Later years

In 2003, Baker and McConnell amended their individual tax returns for the year 2000, filing jointly as a couple. They offered proof of a valid marriage license issued in Blue Earth County. The IRS challenged the validity of the marriage license and argued that, even if the license were valid, the Defense of Marriage Act prohibited the IRS from recognizing it. McConnell brought suit and the U.S. District Court for Minnesota upheld the IRS ruling in McConnell v. United States on January 3, 2005, and the Eighth Circuit Court of Appeals affirmed the District Court's ruling on July 17, 2006, saying that McConnell could not relitigate the question decided in Baker v. Nelson.

Baker and McConnell were still living as a married couple as late as May 2015.

The U.S. Supreme Court agreed in 2015, "to decide the issue Jack Baker and Mike McConnell tried to bring before it in 1972: Do same-sex couples have a constitutional right to get married?" That case was dismissed "for want of a substantial federal question." Minnesota's Attorney General argued, in March 2015, as a friend of the court: "The procreation rationale [used by the Minnesota Supreme Court] does not support the prohibition of same-sex marriage"

Interview

Short documentary