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Justia › US Law › Case Law › Minnesota Case Law › Minnesota Supreme Court
Decisions › 1971 › Baker v. Nelson
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BAKER V. NELSON

Annotate this Case



191 N.W.2d 185 (1971)

Richard John BAKER et al., Appellants, v. Gerald NELSON, Clerk of Hennepin
County District Court, Respondent.

No. 43009.



Supreme Court of Minnesota.

October 15, 1971.

R. Michael Wetherbee, Minneapolis, for appellants.

George Scott, County Atty., David E. Mikkelson, Asst. County Atty., Minneapolis,
for respondent.

Heard and considered en banc.

OPINION

PETERSON, Justice.

The questions for decision are whether a marriage of two persons of the same sex
is authorized by state statutes and, if not, whether state authorization is
constitutionally compelled.

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.

1. Petitioners contend, first, that the absence of an express statutory
prohibition against same-sex marriages evinces a legislative intent to authorize
such marriages. We think, however, that a sensible reading of the statute
discloses a contrary intent.

Minn.St. c. 517, which governs "marriage," employs that term as one of common
*186 usage, meaning the state of union between persons of the opposite sex.[1]
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. 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" (the latter words inserted by L.1969, c. 1145, § 3, subd. 3).

We hold, therefore, that Minn.St. c. 517 does not authorize marriage between
persons of the same sex and that such marriages are accordingly prohibited.

2. Petitioners contend, second, that Minn.St. c. 517, so interpreted, is
unconstitutional. There is a dual aspect to this contention: The prohibition of
a same-sex marriage denies petitioners a fundamental right guaranteed by the
Ninth Amendment to the United States Constitution, arguably made applicable to
the states by the Fourteenth Amendment, and petitioners are deprived of liberty
and property without due process and are denied the equal protection of the
laws, both guaranteed by the Fourteenth Amendment.[2]

These constitutional challenges have in common the assertion that the right to
marry without regard to the sex of the parties is a fundamental right of all
persons and that restricting marriage to only couples of the opposite sex is
irrational and invidiously discriminatory. We are not independently persuaded by
these contentions and do not find support for them in any decisions of the
United States Supreme 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. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S. Ct.
1110, 1113, 86 L. Ed. 1655, 1660 (1942), which invalidated Oklahoma's Habitual
Criminal Sterilization Act on equal protection grounds, stated in part:
"Marriage and procreation are fundamental to the very existence and survival of
the race." This historic institution manifestly is more deeply founded than the
asserted contemporary concept of marriage and societal interests for which
petitioners contend. The due process clause of the Fourteenth Amendment is not a
charter for restructuring it by judicial legislation.

Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965),
upon which petitioners rely, does not support a contrary conclusion. A
Connecticut criminal statute prohibiting the use of contraceptives by married
couples was held invalid, as violating the due process clause of the Fourteenth
Amendment. The basic premise of that decision, however, was that the state,
having authorized marriage, was without power to intrude upon the right of
privacy inherent in the marital relationship. Mr. Justice Douglas, author of the
majority opinion, wrote that this criminal statute "operates directly on an
intimate relation of husband and wife," 381 U.S. 482, 85 S. Ct. 1680, 14 L. Ed.
2d 513, and that the very idea of its enforcement by police search of "the
sacred precincts of marital bedrooms for telltale signs of the use of
contraceptives * * * is repulsive to the notions of privacy surrounding the
marriage relationship," 381 U.S. 485, 85 S.Ct. *187 1682, 14 L. Ed. 2d 516. In a
separate opinion for three justices, Mr. Justice Goldberg similarly abhorred
this state disruption of "the traditional relation of the familya relation as
old and as fundamental as our entire civilization." 381 U.S. 496, 85 S. Ct.
1688, 14 L. Ed. 2d 522.[3]

The equal protection clause of the Fourteenth Amendment, like the due process
clause, is not offended by the state's classification of persons authorized to
marry. There is no irrational or invidious discrimination. Petitioners note that
the state does not impose upon heterosexual married couples a condition that
they have a proved capacity or declared willingness to procreate, posing a
rhetorical demand that this court must read such condition into the statute if
same-sex marriages are to be prohibited. Even assuming that such a condition
would be neither unrealistic nor offensive under the Griswold rationale, the
classification is no more than theoretically imperfect. We are reminded,
however, that "abstract symmetry" is not demanded by the Fourteenth
Amendment.[4]

Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), upon
which petitioners additionally rely, does not militate against this conclusion.
Virginia's antimiscegenation statute, prohibiting interracial marriages, was
invalidated solely on the grounds of its patent racial discrimination. As Mr.
Chief Justice Warren wrote for the court (388 U.S. 12, 87 S. Ct. 1824, 18
L.Ed.2d 1018):

"Marriage is one of the `basic civil rights of man,' fundamental to our very
existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110,
86 L. Ed. 1655 (1942). See also Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31
L. Ed. 654 (1888). To deny this fundamental freedom 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. The Fourteenth Amendment requires that the freedom of choice to
marry not be restricted by invidious racial discriminations.[5]"

Loving does indicate that not all state restrictions upon the right to marry are
beyond reach of the Fourteenth Amendment. But in commonsense and in a
constitutional sense, there is a clear distinction between a marital restriction
based merely upon race and one based upon the fundamental difference in sex.

We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth,
Ninth, or Fourteenth Amendments to the United States Constitution.

Affirmed.

NOTES

[1] Webster's Third New International Dictionary (1966) p. 1384 gives this
primary meaning to marriage: "1 a: the state of being united to a person of the
opposite sex as husband or wife."

Black, Law Dictionary (4 ed.) p. 1123 states this definition: "Marriage * * * is
the civil status, condition, or relation of one man and one woman united in law
for life, for the discharge to each other and the community of the duties
legally incumbent on those whose association is founded on the distinction of
sex."

[2] We dismiss without discussion petitioners' additional contentions that the
statute contravenes the First Amendment and Eighth Amendment of the United
States Constitution.

[3] The difference between the majority opinion of Mr. Justice Douglas and the
concurring opinion of Mr. Justice Goldberg was that the latter wrote extensively
concerning this right of marital privacy as one preserved to the individual by
the Ninth Amendment. He stopped short, however, of an implication that the Ninth
Amendment was made applicable against the states by the Fourteenth Amendment.

[4] See, Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 S. Ct. 281, 282, 58 L.
Ed. 539, 543 (1914). As stated in Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct.
879, 882, 84 L. Ed. 1124, 1128, 130 A.L.R. 1321, 1324 (1940), and reiterated in
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 540, 62 S. Ct. 1110, 1113,
86 L. Ed. 1655, 1659, "[t]he Constitution does not require things which are
different in fact or opinion to be treated in law as though they were the same."

[5] See, also, McLaughlin v. Florida, 379 U.S. 184, 85 S. Ct. 283, 13 L. Ed. 2d
222 (1964), in which the United States Supreme Court, for precisely the same
reason of classification based only upon race, struck down a Florida criminal
statute which proscribed and punished habitual cohabitation only if one of an
unmarried couple was white and the other black.

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