Why Two “Faggots” Can’t Get Married – A History of Marriage Inequality
Richard Adams (center) and almost-husband Anthony Sullivan (right) – “Faggots” according to INS
Virginia’s constitutional ban on same sex marriage was enacted by popular vote in 2006, but its roots, as well as many other states, date back much further than that. And a deeper look exposes just how hateful state and federal governments really were less than a generation ago.
The first recorded legal battle around same-sex marriage started in 1970. Richard Baker and James McConnell, two University of Minnesota students, applied for a marriage license in Minneapolis. Gerald Nelson, the clerk of the court, “declined to issue the license on the sole ground that petitioners were of the same sex,” according to the case brief.
The couple took the clerk to court in the case Baker v. Nelson, citing Minnesota State Law which contained no specific literature denying a marriage license to two people of the same sex. Baker also claimed First, Eighth, Ninth and Fourteenth Amendments would be violated if two persons of the same sex were not allowed a marriage license.
The Minnesota trial court dismissed the claims and the couple were ultimately denied a marriage license. Baker and McConnell appealed to the Minnesota Supreme Court, but they would find no solace in the higher authority. According to the opinion, the court affirmed the trial court’s rulings, stating,
Minn.St. c. 517, which governs “marriage,” employs that term as one of common 186*186usage, meaning the state of union between persons of the opposite sex. 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 couple then appealed to the U.S. Supreme Court, who dismissed the case.
After the Baker decision, the first of five states issued statutory prohibitions on same sex marriages in the 1970s: Maryland in 1973; Virginia in 1975; and Florida, California New Hampshire and Wyoming in 1977.
You can read Virginia’s first anti-same sex marriage legislation here.
According to a case brief from Lambda Legal the 1975 legislation is a theorized to be the result of Baker v. Nelson,
Virginia’s constitutional amendment barring same-sex couples from marrying and refusing to recognize such marriages entered elsewhere is the final result of a long series of legislative actions. First, in 1975, Virginia adopted a statute providing that “a marriage between persons of the same sex is prohibited.” Va. Code Ann. § 20-45.2. That enactment was a response to Baker v. Nelson.
Virginia is not known for its excellent maintenance of legal documents; while specific reasons for the 1975 ban are hard to nail down, Lambda has since used the Baker case as the patient-zero for all future same-sex marriage bans.
But the growth of marriage inequality is not based solely on the Baker case. In 1975, Richard Adams, an American citizen, and Anthony Sullivan, an Australian alien, were married in Boulder, Colorado (CO had not yet instituted a statutory ban on same-sex marriage by that time). When Sullivan’s visitor’s visa expired, he filed for a green card based on marital status.
What they received was a rejection letter from the Immigration and Naturalization Services (INS), which infamously claimed the couple had “failed to establish that a bona fide marital relationship can exist between two faggots.”
This, as you can imagine, did not sit well with Adams, who took the then Acting Director of the INS, Joseph D. Howerton, to court over the issue. Adams v. Howerton became the first lawsuit that addressed the federal recognition of same sex marriage.
It wasn’t until 1982 when the Ninth District Court rejected Adam’s claims, saying a bona fide marital relationship could not exist between two men. Adams then appealed with two pretty important questions: (1) must a person’s spouse be a person of the opposite sex, and (2) if the answer is yes, is that constitutional?
The Court of Appeals answered as follows: (1) Yes. (2) Yes. Sullivan then petitioned for a writ of certiorari to the Supreme Court of the United States. The court denied this petition, silencing the fight.
You can read the entire brief of Adams v. Howerton here.
There was then a lull in the fight against marriage equality. Most legislation barring same sex marriage occurred between 1994 and 1998 as a direct result of same-sex marriage litigation in Hawaii in 1994 (although Hawaii didn’t legalize same sex marriage until October 2013). After the enactment of DOMA in 1996, 35 States introduced bills denying same-sex marriage.
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