In its haste to get a footnote in the history of marriage redefinition, the federal court in Connecticut that yesterday held DOMA was unconstitutional appears to have made a major mistake.
In trying to distinguish a U.S. Supreme Court decision summarily dismissing a constitutional claim for same-sex marriage from the early 1970s, yesterday’s decision said: “Baker presented a state constitutional question while this case presents a United States constitutional question” (page 23).
Here are the issues (see page 14) presented to the Supreme Court in Baker:
1. Whether appellee’s refusal to sanctify appellant’s marriage deprives appellants of their liberty to marry and their property without due process of law under the Fourteenth Amendment.
2. Whether appellee’s refusal, pursuant to Minnesota marriage statutes, to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.
3. Whether appellee’s refusal to sanctify appellants’ marriage deprives appellants of their right to privacy under the Ninth and Fourteenth Amendments.
The Minnesota constitution does not contain 9th and 14th Amendments, but the U.S. Constitution does.
I am grateful to an excellent law student, Michael Worley, who brought this to my attention.