Sep 24, 2009 by Bruce
The Supreme Court rejected same-sex marriage 37 years ago. Surprised?
Outside of the legal wonks following the Perry v. Schwarzenegger case, not many people may be aware that the U.S. Supreme Court rejected the constitutional arguments for same-sex marriage that are now being raised in the Perry case. In Baker v. Nelson, a 1972 case, the Supreme Court dismissed an appeal from the Minnesota Supreme Court denying two homosexuals the right to be married under Minnesota’s law that restricted marriage to one man and one woman. The Baker case involved the equal protection and due process clauses of the U.S. Constitution. So does Perry.
Baker might turn out to be the basis for why Prop 8 wins in the Perry case. And then again it might not.
The Perry plaintiffs (who want Prop 8 ruled unconstitutional) are arguing that the Baker precedent does not apply to the Perry case; the lawyers for defendants ProtectMarriage.com, et al, are, of course, arguing that it does. Because of the unusual way Baker was decided by the Supreme Court (dismissed for “want of a federal question”) without an “official” court opinion, that “decision” will only operate as binding precedent in the Perry case if:
- the same factual and legal circumstances exist; and
- only if Baker has not been undermined by subsequent Supreme Court cases involving homosexual issues – cases such as Romer v. Evans and Lawrence v. Texas.
The Baker issue hasn’t arisen before because almost every other marriage case has been argued under state constitutional principles. Since Perry invokes the U.S. Constitution, Baker comes into play.
In the legal brief that Jenny links to, the Baker discussion can be found at page 13. I think it’s a winning argument. We’ll see how the court treats it soon enough.
Was not implying a contradiction – just looking for further thought on it – thank you sir.
Any views on the role legal precedence should take in this case as opposed to taking off corporate spending (and union spending) in political campaigns? I believe you said precedence shouldn’t matter much, just the interpretation of the constitution, correct?
I think you’re suggesting that I’ve contradicted myself with regard to the role of the Constitution and legal precedents. Perhaps you didn’t understand my earlier post about campaign finance laws. As with judicial review of any statute (or in this case, a state marriage amendment), the Constitution’s language and original meaning should trump any legal precedent in conflict with the Constitution. That’s not just basic constitutional law; it’s also common sense. In this post, I was suggesting that there was Supreme Court precedent which determines this case in favor of Prop 8. If the Baker case did conflict with the U.S. Constitution, however, I would be the first to suggest that it should be overturned. It just so happens that it doesn’t conflict with the Constitution, so Baker serves as binding precedent that should resolve the Perry case in favor of Prop 8.