The Supreme Court already ruled there’s no constitutional right to gay ‘marriage’—in 1972
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| United States Supreme Court building. (Photo credit: Wikipedia) |
Have you ever heard of the 1972 U.S. Supreme Court decision in a case called Baker v. Nelson?
If so, you are probably a lawyer, or (like me) a person who regularly reads briefs and court decisions on the issue of redefining “marriage” to include homosexual couples.
If you have never heard of this case, you can be forgiven — even if you regularly read news stories about the movement for the same-sex redefinition of marriage.
However, Baker v. Nelson is an important precedent on this issue. It was the very first case in which anyone ever asserted that the Constitution of the United States protects the right to legally “marry” a person of the same sex. In Baker, a male couple sued a county clerk in Minnesota for denying them a marriage license in May 1970. The case made its way to the Supreme Court of Minnesota — which, on October 15, 1971, issued a ruling declaring that the state’s marriage law did not permit a same-sex couple to “marry,” and that it “does not offend … the United States Constitution.”
The case was appealed directly to the U.S. Supreme Court — which at the time, was required to accept all such appeals (this is no longer true). The Supreme Court issued its ruling on the case on October 10, 1972, declaring (in full): “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.”
The dismissal of the appeal “for want of [a] substantial federal question” meant that the U.S. Supreme Court allowed the Minnesota Supreme Court’s decision against same-sex “marriage” to stand.
Hundreds of times a year, the Supreme Court allows lower court decisions to stand as the final ruling in that particular case when it “denies a writ of certiorari” (or “denies cert” for short). Such denials do not imply that the Supreme Court necessarily agrees with the decision or its reasoning, and they do not set binding precedent for future cases.
However, a “dismissal for want of a substantial federal question” is not just a refusal to hear the case, the way that a denial of a writ of certiorari is. Such a summary dismissal is considered to be both a decision on the merits and a binding precedent. The Supreme Court explained this in a 1975 decision, Hicks v. Miranda. I have omitted citations and quotation marks in the following, but the Court affirmed this view of summary dismissals:
Votes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case … . Unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that, if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise … . [T]he lower courts are bound by summary decisions by this Court until such time as the Court informs [them] that [they] are not.
Unfortunately, the “inferior federal courts” have not been acknowledging the binding precedent of Baker — at least, not since the Supreme Court’s decision in June 2013 (United States v. Windsor) striking down the one-man-one-woman definition of marriage in the federal Defense of Marriage Act (DOMA). Judges in the recent federal cases have asserted that “doctrinal developments” (both with regard to the treatment of sexual orientation and of marriage under the law and Supreme Court precedent) have made Baker no longer binding.
Although the Windsor case is widely cited as the decisive case tipping the balance in favor of a federal constitutional right to same-sex “marriage,” it actually addressed a much narrower issue. DOMA effectively denied federal recognition even to same-sex “marriages” that were legal in the eyes of a State, and it was this “unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage” that was deemed offensive to the Constitution. On the other hand, state laws defining marriage as the union of one man and one woman are not an “unusual deviation from the usual tradition” — they are the usual tradition.
Justice Kennedy’s majority opinion made clear that Windsor was about “persons who are joined in same-sex marriages made lawful by the State” (emphasis added). The penultimate sentence of the opinion states specifically, “This opinion and its holding are confined to those lawful marriages.”
Implicit in this caveat is that the “opinion and its holding” do not apply to same-sex relationships that have not been deemed to be legal “marriages” by any State. As Hicks v. Miranda said, “[T]he lower courts are bound by summary decisions by this Court until such time as the Court informs [them] that [they] are not.” This would suggest that the summary decision in Baker remains binding (at least on the lower courts), since even in Windsor, the Supreme Court has never “informed [them] that [it] is not.”
Some people may argue that the absence of a written opinion explaining its reasoning limits the precedential value of Baker. However, while the U.S. Supreme Court dismissed the case in a scant twelve words, the same is not true of the Minnesota Supreme Court. They issued a written opinion over a thousand words long, succinctly but clearly explaining the weakness of the plaintiffs’ case.
Although the written opinion was from a state court, the plaintiffs’ primary claims (and the Minnesota Supreme Court’s opinion) dealt primarily with federal constitutional issues. The assertions made by the plaintiffs — relating to the due process and equal protection clauses of the Fourteenth Amendment — are virtually the same as those being made in the cases working their way through the federal courts today.
Therefore, it is worth reading the Minnesota Supreme Court decision in Baker v. Nelson. An honest judge with integrity could just as easily release it again today.
The version below is edited for clarity by removing legal citations (except the one for Baker itself) and by turning all footnotes into end notes, as well as by adding limited explanatory material. The full text of the decision can be found various places online, including here.
