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Same-sex marriage, the Supreme Court, and the Freedom to Read Foundation

Posted By Jonathan M. Kelley, Wednesday, March 27, 2013
Mike McConnell

Yesterday during oral arguments in the Supreme Court's hearing on California's Proposition 8, Justice Samuel Alito asserted that,

"Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in the Netherlands in 2000 ... But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cellphones or the Internet?"

His comment was in the context of a line of questioning around sociological data around the effects of same-sex marriage on marriage as an institution and on children.  The merits of his assertion aside, it brings up an interesting historical fact: one reason institutionalized same-sex marriage is "newer than cellphones" is that his very court in 1972 refused to hear an appeal to a Minnesota Supreme Court decision to deny a same-sex couple a marriage license.

That case has a connection to the Freedom to Read Foundation.

The case began two years earlier, when a young librarian named Michael McConnell applied with his lover, Jack Baker, for a marriage license in Hennepin County, Minnesota, where they had moved so that Jack could attend the University of Minnesota Law School.  They were denied that license, and in subsequent litigation a state district court upheld the denial.  The Minnesota Supreme Court agreed with the lower court decision, and McConnell and Baker's appeal to the U.S. Supreme Court was dismissed "for want of a substantial federal question."  

The Court's decision in Baker v. Nelson ironically may actually have made subsequent efforts to get federal courts to grant same-sex marriage rights more difficult. [Update 5/3/2013: While some indeed have made this claim, McConnell and Baker strongly refute it, as have many others who have discussed their case.]  Baker has been cited in some other decisions dismissing same-sex marriage claims, although ignored in others.  The case was brought up elsewhere in yesterday's oral arguments, by Charles Cooper, the attorney defending Proposition 8. Justice Ginsburg in response noted that much had changed since Baker.  (Here's a great rundown from SCOTUSBlog about the fallout from Baker and its implications for the current Prop 8 and DOMA cases.)

But back to the Freedom to Read Foundation.

In planning his move to Minnesota, McConnell applied for a position as Head of Cataloging at the U of M Library. The head librarian hired him and Mike left his job in Kansas Missouri and moved to Minnesota.  However, when the university's Board of Regents found out about his attempt to marry legally, they made the unprecedented decision to deny his appointment.  That led McConnell to file a different lawsuit, this one charging discrimination and a violation of civil rights.

In a landmark ruling, a federal district court enjoined the Board of Regents' action.  However, on appeal, the Eighth Circuit Court of Appeals overturned the injunction, saying it wasn't a case of someone who had a "desire clandestinely to pursue homosexual conduct" but rather:

"...a case in which the applicant seeks ... the right to pursue an activist role in implementing his unconventional ideas concerning the societal status to be accorded homosexuals and, thereby, to force tacit approval of this socially repugnant concept upon his employer, who is, in this instance, an institution of higher learning.  We know of no constitutional fiat or binding principle of decisional law which requires an employer to accede to such extravagant demands."

In the midst of these travails, McConnell applied to the LeRoy C. Merritt Humanitarian Fund for help in paying his bills.  The Merritt Fund, then under the auspices of the Freedom to Read Foundation, provides monetary support to librarians who are fired or otherwise denied employment rights due to their defense of intellectual freedom.  (After becoming a separate organization, the Merritt Fund added situations specifically involving discrimination to its purview.)

On October 19, 1971, in one of its first grants, the Merritt Fund trustees approved a grant of $500 for McConnell, the full amount of his request.  As reported by Alex Allain in his FTRF President's Report to ALA Council,

"The grant was made under the humanitarian purposes of the Merritt Fund, in order to defray financial hardship suffered as a result of recriminations met by Mr. McConnell for exercising free speech in expressing his sexual preference." 

Like other early Merritt Fund cases, the grant was made public (see this article from the second issue of the Freedom to Read Foundation News).  Today, all Merritt Fund grants are confidential unless the grantee gives explicit approval to make the case public.

McConnell's appeal to the U.S. Supreme Court of the Eighth Circuit's decision was aided by the ACLU of Minnesota. Unfortunately, the Court  announced on April 3, 1972, its 8-1 decision to deny certiorari (only Justice William O. Douglas dissented).  Six months later, the Court issued its ruling in Baker.

There are many more twists and turns to this story, including Jack's election as the first openly gay student body president at a major university; Jack and Mike's involvement in the early days of the ALA Gay Liberation Task Force (now the Gay, Lesbian, Bisexual, and Transgender Round Table); Jack's Mike's hiring at Hennepin County Library (by future ALA president Mitch Freedman) and distinguished 37-year career there; and the unsuccessful effort by Mike to get ALA's Intellectual Freedom Committee to censure the university (although they did issue a statement that his rights under the First Amendment were violated).

Then there's Jack and Mike's second attempt to attain a marriage license (following a legal name change by Mike Jack to Pat Lyn McConnell).  This attempt was successful and was never challenged in court. The couple - together to this day - maintains that their marriage is valid under the law.

Update 3/28/2013: I just discovered this great New York Times article by Linda Greenhouse, from last week, about McConnell and Baker.  It gives a more thorough background on the legal maneuverings involved in the case - http://opinionator.blogs.nytimes.com/2013/03/20/wedding-bells/

Update 5/6/2013: The original blog post contained a few errors that are now corrected, following correspondence with McConnell.

Tags:  LeRoy C. Merritt Humanitarian Fund  Michael McConnell  same-sex marriage  Supreme Court 

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