Copyright May 18, 2004 by Ken Bronson. All rights reserved.

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Minnesota Supreme Court waffles

R. Michael Wetherbee, attorney for Jack and Michael, appealed Judge Tom Bergin's refusal to order the Clerk of Court to issue a marriage license. At the time, Minnesota did not have an intermediate appellate court, so the case went directly to the state Supreme Court. The newly-elected Attorney General declined to participate in the appeal.

Jack wrote the briefs, as supervised by Wetherbee. They argued that Minnesota statutes did not specifically prohibit same-sex marriage. Also, if the current statute were interpreted to allow only mixed-sex marriages, it was unconstitutional under the 9th and 14th amendments to the U.S. Constitution.

September 1971
During the hearing before the full court on September 21, 1971, Justice Fallon Kelly insulted the court, the attorneys and the gay citizens who were seeking justice. "He rotated his chair," Jack said, "so that he faced the wall, with his back to the rostrum."

Wetherbee ignored the insult. He told the judges who were listening that nowhere in Minnesota law does it forbid gay marriages. If the legislature opposed gay marriages, he argued, they failed to demonstrate it during the last session when an attempt to ban same-sex marriage failed. Also, he continued, the provision requiring licenses to be issued in the county where the woman resides was intended to simplify record keeping, not require the involvement of a woman.

Most likely, the marriage would occur in the bride's home church. If this provision were to be strictly enforced, Wetherbee said, it would require either Michael or Jack to undergo a sex-change operation in order to be married, a form of cruel and unusual punishment forbidden by the U.S. Constitution.

David E. Mikkelson, assistant county attorney, countered with a simple conclusion: no bride, no license. Also, he said, state laws are filled with references to husband and wife, implying marriage to be a male-female institution.

Wetherbee argued that the marriage laws refer to persons, parties and residents, which are sexless terms that cannot be inferred to be strictly male-female. Because the law permits marriage of infertile couples for affection and companionship, the state of Minnesota cannot deny gay couples the same privilege. "If the purpose of marriage is to have children," he said, "we demand that this court require all couples to have children - or at least that they be examined before marriage to ensure that they're able to."

"This is a kind of police power in the broadest sense," Mikkelson explained. "The State has a right to legislate for the public welfare of the community." To attack that right, he insisted, is "an attempt to undermine the law of our Creator."

Wetherbee called Mikkelson a misguided public official who is attempting to impose his concept of "God's law" on the people of Minnesota. Such a requirement," he said, "would be a scar on the First Amendment to the U.S. Constitution and an insult to the non-Christians of Minnesota."

The seven judges remained silent during the 75 minutes of oral arguments and adjourned without asking a single question. The Minnesota Supreme Court announced its decision on Friday, October 15, an unusually short three weeks later.

Their opinion interpreted the marriage statute as a whole and ignored the section that defined "persons" who are "capable in law of contracting marriage." Minnesota's marriage laws, the court said, did not permit the marriage of two men because "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."

Taking a broad look, the court said, "It is unrealistic to think that the original draftsman of our marriage statutes, which date from territorial days, would have used the term [marriage] in any different sense from an opposite-sex one." The court then said it was not "independently persuaded" by the constitutional arguments and could find no support for them in any decision of the U.S. Supreme Court.

Specifically, the opinion noted, the high court's decision to uphold mixed-race marriage in Loving v. Virginia (1967) was not a precedent for upholding same-sex marriage. There exists "in commonsense," the opinion noted, "a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

Jack described the decision as "hasty, sterile, and cursory, a flimsy attempt to justify a decision the court reached for reasons that have nothing to do with the meaning of the law." He said they would appeal the decision to the U.S. Supreme Court.

"They really didn't address themselves to the constitutional arguments, and never mentioned two of them," he emphasized. "I mean our First Amendment argument, where we cite freedom of speech and freedom of association as being denied. And the Eighth Amendment against `cruel and unusual punishment,' which it certainly would be, to insist on one penis and one vagina - to require Mike or me to undergo a sex-change operation so we can get married."

The Minnesota court spoke with a unanimous voice. On the following Monday (October 18), the federal court of appeals would announce another defeat in Michael's case. "It seemed to me," Jack said, "that both courts had coordinated their announcements for maximum impact."

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