A whole lot of judges who are being asked to decide whether states may ban same-sex couples from marrying think the Supreme Court clearly gave them the answer last year: no.
But a few judges think the Supreme Court provided the answer more than 40 years ago: yes.
That reading comes from a one-sentence order the court issued in a 1972 case, Baker v. Nelson, which said there was no “substantial federal question” in a state’s decision to ban same-sex marriages.
The dismissal of that long-ago case might be the reason that same-sex marriage supporters see their winning streak in federal courts come to an end.
And it could give lower court judges, who know the ultimate answer on same-sex marriage will come from the Supreme Court, a way to uphold voter-approved state bans without deciding the thorny constitutional questions that accompany the issue.
A Tennessee state judge recently cited Baker in a limited decision that upheld Tennessee’s refusal to acknowledge same-sex marriages conducted where they are legal.
More importantly, the pivotal judge on a three-member appeals court panel reviewing decisions that struck restrictive laws in Michigan, Ohio, Tennessee and Kentucky questioned lawyers extensively about whether Baker precluded the panel from deciding the merits of the cases.
A decision by the U.S. Court of Appeals for the 6th Circuit to uphold the laws would create a conflict with two other appeals courts that have found state bans unconstitutional and almost surely force the Supreme Court to settle the issue sooner rather than later.
The Baker case started in 1970, when Richard Baker and James Michael McConnell, two gay activists at the University of Minnesota, applied for and were denied a marriage license (it wasn’t just a test; their relationship lasted).
They sued, and the Minnesota Supreme Court had made short work of rejecting their claim: that the state law limiting marriage to persons of the opposite sex violated the U.S Constitution’s protection of the fundamental right to marry.
The American Civil Liberties Union asked the U.S. Supreme Court to intervene, but the justices needed neither briefing nor oral argument to turn down the request.
“The appeal is dismissed for want of a substantial federal question” is the entirety of the court’s action.
Even such summary dismissals from the Supreme Court bind lower courts hearing similar cases, unless there have been substantial “doctrinal developments” in high court precedent to render them obsolete.
Baker v. Nelson was cited by opponents of same-sex marriage in the two cases the Supreme Court decided in 2013 — U.S. v. Windsor, concerning a key section of the federal Defense of Marriage Act, and Hollingsworth v. Perry, about California’s state constitutional amendment limiting marriage to a man and a woman.
The precedent, however, got short shrift. Justice Ruth Bader Ginsburg told the lawyer representing defenders of California’s ban that the short Supreme Court opinion had been overtaken by other developments in the law.
At the time of Baker, Ginsburg said during oral argument, “The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”
When the court struck down that part of DOMA, and decided procedural problems prevented it from ruling on the merits in the California case, Baker was not mentioned.
So does that mean the justices found Baker is a relic, or that it was simply unnecessary to its opinions in the two cases, and remains binding on lower courts?
Almost all the judges who have looked at the question find the former. The court’s subsequent decisions protecting gays from laws that single them out and finding that homosexual contact cannot be criminalized point in that direction, they say.
In its 2-to-1 decision striking Virginia’s same-sex marriage ban, the judges of the U.S. Court of Appeals for the 4th Circuit noted that all federal court decisions since the Windsor decision have found that Baker was no obstacle to deciding the merits of the cases.
“The Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law,” wrote Circuit Judge Henry F. Floyd.
It was the court’s rejection of the federal definition of marriage that compelled the decision that state bans are also unconstitutional, Floyd said, because it reflected the trajectory of the court’s changing view of discrimination.
“These cases demonstrate that, since Baker, the Court has meaningfully altered the way it views both sex and sexual orientation through the equal protection lens.”
Dissenting judges in the 4th Circuit and in the U.S. Court of Appeals for the 10th Circuit, which overturned bans in Utah and Oklahoma, felt otherwise.
But it might be even more important in the 6th Circuit, where oral arguments earlier this month indicated that Circuit Judge Jeffrey Sutton will control the decision regarding the laws in the four states.
Sutton is a favorite of the conservative legal establishment and has often championed judicial minimalism, reluctant to have courts intervene in matters he thinks should be left to the democratic process.
He repeatedly asked lawyers challenging the bans why his court should not feel bound by Baker, since the Supreme Court has never found reason to overturn it.
Concluding that Baker gave the court no power to reach the merits of whether states may ban same-sex marriage would simply move the issue to the Supreme Court.
And supporters of gay marriage say privately that it would be the best way for them to lose: the justices themselves are under no obligation to affirm that their predecessors decided 40 years ago.