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Richard John BAKER and Another
v. Gerald R. NELSON Supreme Court of 291
Minn. 310; 191 N.W.2d 185 Decided: [PETERSON delivered the opinion of the court.] 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 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. n1 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." 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. n2 n2 We dismiss without discussion
petitioners' additional contentions that the statute contravenes the First
Amendment and Eighth Amendment of the United States Constitution. 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. 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 family -- a relation as old and as
fundamental as our entire civilization." 381 U.S. 496, 85 S. Ct.
1688, 14 L. ed. 2d 522. n3 n3 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. 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. n4 n4 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." 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 (1942). See also Maynard v. Hill, 125
U.S. 190 (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." n5 [*315]
Loving does indicate that not all state restrictions upon the right to
marry are beyond reach of the Fourteenth Amendment. But in commonsense
[***9] 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. n5 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. We hold, therefore, that Minn. St. c. 517 does not
offend the First, Eighth, Ninth, or Fourteenth Amendments to the United
States Constitution. AFFIRMED. |
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