Contextualizing Varnum v. Brien: a "moment" in history

Plaintiffs relied primarily on equality and due process arguments, arguing that the statutes discriminated on the basis of sex and deprived the plaintiffs of the fundamental right of privacy, or more specifically, the right to marry.12 Similar arguments had succeeded before the United States Supreme...

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Bibliographic Details
Published inThe journal of gender, race, and justice Vol. 13; no. 1; pp. 27 - 58
Main Author Cain, Patricia A
Format Journal Article
LanguageEnglish
Published Iowa City University of Iowa 22.09.2009
University of Iowa, College of Law
Subjects
Civil Rights
Civil unions
Community Relations
Court Litigation
Equal Protection
Equality before the law
Federal Courts
Females
Feminism
Gay couples
Gays & lesbians
Gender Discrimination
Laws, regulations and rules
Marriage
Privacy
Privacy, Right of
Racial Discrimination
Same sex marriage
State court decisions
State Courts
Women
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Summary:Plaintiffs relied primarily on equality and due process arguments, arguing that the statutes discriminated on the basis of sex and deprived the plaintiffs of the fundamental right of privacy, or more specifically, the right to marry.12 Similar arguments had succeeded before the United States Supreme Court in Loving v. Virginia, the case that struck down Virginia's ban on interracial marriages.13 To many, it seemed a logical step to argue that if a state could not restrict the race of one's chosen spouse, it similarly could not restrict the gender.14 The courts hearing these arguments, however, thought otherwise, concluding, in the words of the Supreme Court of Kentucky, that no constitutional issue is involved. "15 The first reported case, Baker v. Nelson, was litigated in Minnesota.16 The plaintiffs, Jack Baker and Mike McConnell, argued that the Minnesota marriage statute, which provided that "marriage ... is a civil contract, to which the consent of the parties, capable in law of contracting, is essential,"17 did not by its terms restrict marriage to a man and a woman.18 Further, they argued, if it did, the restriction violated the Federal Constitution.19 The Minnesota Supreme Court ruled that society had always understood marriage, as used in the Minnesota statute, as a contract limited to a man and a woman and refused to construe the statute more broadly.20 It also rejected the federal constitutional claims, distinguishing Loving as a decision based on patent racial discrimination and finding no analogy between race and sex restrictions in marriage statutes.21 As to their privacy/right to marry argument, the court ruled that under Griswold v. Connecticut,22 privacy rights were limited to married couples.23 Baker and McConnell appealed the decision to the United States Supreme Court.24 At that time, appellate review procedures required the United States Supreme Court to grant review in any case appealed from the highest state court if that court had rejected the federal claims.25 The U.S. Supreme Court denied the requested review in Baker, holding that the case did not raise a "substantial federal question.
ISSN:1550-7815