Analysis

1971.  “This was the year,” a history of the gay rights movement recalls, “we began to make ourselves real.  For decades, homophiles had spoken in polite whispers.  In 1969 a gay battle cry had been sounded at Stonewall.  In 1970 we got organized and began to argue over our goals.  Nineteen seventy-one was the year we grew loud enough to be heard, and like us or not, America could no longer deny that we were there.” (Arnie Kantrowitz, in Long Road to Freedom, published in 1994 by The Advocate magazine)

In October of that year, however, Pacific Telephone & Telegraph Co. announced that it would not hire a known homosexual.  And, on October 15,  the Minnesota Supreme Court ruled — in a five-page opinion without dissent — that  the Constitution does not protect “a fundamental right” for same-sex couples to get married.  That ruling, in Baker v. Nelson, was upheld by the Supreme Court in Washington almost exactly a year later, with this order: “Appeal from Sup. Ct. Minn. dismissed for want of a substantial federal question.” (Baker v. Nelson, October 10, 1972, docket 71-1027).

Now, 40 years later, the Supreme Court is being asked to apply that ruling anew, to save a 1996 law, the Defense of Marriage Act.  Soon, it also will be asked to rely on Baker v. Nelson to uphold California’s “Proposition 8,” banning same-sex marriage in that state.   Some lower courts, in deciding gay rights cases in recent years, have been finding ways around that precedent, saying either that it does not cover the legal issues at stake, or that it has been outdated by changes in gay rights law in the four decades since 1971.  The Supreme Court, though, may have to confront it directly. 

Baker v. Nelson had begun when Richard John Baker and James Michael McConnell, a gay couple, applied to a court clerk in Minneapolis, Gerald R. Nelson, for a marriage license.  They were turned away, because a state law limited marriage to “persons of the opposite sex.”  A judge agreed with the clerk,. and specifically barred such a license, leading the couple to appeal to the state Supreme Court.   Marriage, that court concluded, “is a union of man and woman,” in an institution “as old as the book of Genesis.”

The precedent is considered to be fully binding even now by opponents of same-sex marriage, but of only limited impact — at most — by advocates of such marriages.   In a petition filed June 29, the Republican leaders of the U.S. House (who oppose same-sex marriage) have relied heavily upon Baker v. Nelson, arguing that the First Circuit Court got around it only by inventing a new constitutional standard for gay rights cases when it struck down DOMA’s ban on federal benefits for legally married same-sex couples (Bipartisan Legal Advisory Group v. Gill, et al., docket 12-13).  The Justice Department does not mention it at all in a new petition filed Tuesday challenging DOMA in a California case (Office of Personnel Management v. Golinski, 12-16), and only mentions it in its own petition in the First Circuit case in relating how that lower court reacted to the precedent (Health & Human Services Department v. Massachusetts, et al., 12-15).   In the Golinski case, a federal District judge in San Francisco concluded that the precedent was simply “irrelevant” in that dispute.

In the not-yet-filed case, the sponsors of California’s “Proposition 8″ ban are expected to invoke the precedent, as they did in defending that voter-approved measure in lower federal courts.   A date for that filing has not been set, but it is expected soon.   In that case, the three-judge Ninth Circuit Court panel — although divided in a ruling finding the ban invalid — agreed that Baker v. Nelson did not apply to that dispute.

Some of the controversy over the 1972 decision stems, of course, from the fact that it was a summary decision without written briefs and oral argument, and contained no explanation other than that the constitutional claim of Baker and McConnell did not raise a “substantial federal question.”  That is the kind of order the Justices formerly used more frequently than in more recent times, to dispose quickly of a case that had come to the Court under supposed mandatory jurisdiction law but involved a challenge that did not impress the Justices as legally significant.   It would be 14 years after Baker v. Nelson before the Supreme Court would issue a major ruling on gay rights — in Bowers v. Hardwick in 1986, upholding a Georgia law that made it a crime for adult gay couples to engage in homosexual acts in private, a decision that was overruled in 2003 by Lawrence v. Texas, when the Court first recognized a constitutional right of privacy for homosexual acts between consenting adults.

Baker v. Nelson, though brief and largely unexplained, is generally considered to be the kind of controlling precedent for later cases raising precisely the same legal issues, but not if the precedent has been undermined by later “doctrinal developments,” in a phrase used by the Supreme Court in an otherwise unrelated case.

That precedent came up when DOMA’s ban on federal benefits for legally married same-sex couples was challenged by seven couples who had been married in Massachusetts and three surviving spouses of such marriage.  They argued that the ban violated their constitutional right to equal protection.  A District judge in Boston agreed with them.  When the case went on appeal to the First Circuit Court in Boston, the Obama Administration switched from its former stance of defending the ban, and began arguing that it was unconstitutional.  The House GOP leaders stepped in to take on the defense of DOMA, as they have now done in cases across the country.

The Republican lawmakers argued that Baker v. Nelson barred any challenge based on a claim of equality for gay couples    The Circuit Court spent little time on the argument.  It noted that DOMA, like the Minnesota law, defined marriage as a union of opposite-sex individuals, and it conceded that the Supreme Court precedent remained binding, and would thus bar any argument that either presumed or explicitly claimed that there was a constitutional right to same-sex marriage.  But, it said, that did not apply to the DOMA case, because the challenging couples and surviving spouses were making no such claim.   They were, of course, already married.  “Baker does not resolve our case,” it concluded.

The Circuit Court then went on to say that prior Circuit Court rulings had established that, in a case involving gay rights, the constitutional standard to judge a challenged law was “rational basis” — ordinarily, the easiest constitutional test to meet.  If simple rational basis were the test, though, the Circuit Court added, the challengers to DOMA could not prevail.  It said there had to be a more demanding version of “rational basis,” when the challenge did not involve commercial or tax disputes, but rather involved a challenging group that had been “historically disadvantaged or unpopular,” and the justification for the government action being challenged was “thin, unsupported or impermissible.”

Thus, the Circuit Court said, there has to be “a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review.”  Applying that approach to a claim by gays and lesbians, the Circuit Court concluded that DOMA’s ban could not survive.  The Circuit Court, though, drew a distinction between that standard and the more demanding standard of “heightened scrutiny,” which the Justice Department had argued after changing its view on DOMA’s validity.   To adopt that standard, it said, would not only go against Circuit precedent, but also would be “implying an overruling of Baker, which we are neither empowered to do nor willing to predict.  Nothing indicates that the Supreme Court is about to adopt this new suspect classification when it conspicuously failed to do” so when it had the chance previously.  Moreover, the Circuit Court said, taking that approach “could overturn marriage laws in a huge majority of individual states.”

The Justice Department, in its petition filed Tuesday in that case, silently relies upon that conclusion about the role of Baker v. Nelson; it recites what the Circuit Court wrote on that precedent, and leaves it at that.  But the petition then went on to argue the Obama Administration’s new position in favor of “heightened scrutiny.”  DOMA is invalid under that standard, the Department contended, as it has done repeatedly in lower courts since last year.

The House GOP leaders’ petition, however, mounts a strong challenge to the First Circuit’s analysis in their Supreme Court plea.   “The court of appeals,” the legislators asserted, “has invalidated a duly-enacted act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny.  In the established world of equal protection law that result should have been impossible.  Under this Court’s cases, a law with a rational basis that does not implicate a suspect class or heightened scrutiny is constitutional.  The court of appeals reached this counterintuitive result by applying an entirely novel form of scrutiny that cannot be reconciled with the approach of this Court and that of ten other circuits….It is hard to imagine a stronger candidate for this Court’s review.”

Turning to its Baker v.Nelson argument, the leaders’ petition noted that the Circuit Court had recognized that it was bound by that precedent, but then improperly failed to recognize that “Baker controls this case. …Baker stands for the proposition that a state may use the traditional definition of marriage without violating equal protection.  It necessarily follows that Congress may use the same traditional definition of marriage for federal purposes without violating equal protection.  The First Circuit was able to evade the clear implications of Baker for this case only by creating an entirely novel form of equal protection review that deviates from this Court’s precedents and the law in virtually every other circuit.”

In the California case that the Justice Department has also now taken to the Supreme Court, the lower court decision that it wants the Justices to review is by U.S. District Judge Jeffrey White of San Francisco.   That case is pending on appeal at the Ninth Circuit, which has set an expedited review schedule.  But the Justice Department has asked the Supreme Court to bypass the Ninth Circuit and take on review itself

The Department sought to justify review by the Court of the California case as well as the First Circuit case, because of differing approaches in the lower courts.  While the First Circuit had said it was following Circuit precedent on the standard of review in that case, Judge White in the California case had concluded that he was not bound by Ninth Circuit precedent that also had established “rational basis” as the proper standard in gay rights cases.  Judge White’s approach, the petition said, “may materially assist this Court’s consideration” of the right standard of constitutional review.

Judge White, noting that the Ninth Circuit previously had established rational basis as the standard for judging “classifications based on sexual orientation,” said the foundations of that view “have sustained serious erosion by virtue of more recent decisions by the Supreme Court. When the premise for a case’s holding has been weakened, the precedential import of the case is subject to question.  District courts are not governed by earlier appellate precedent that has been undercut by higher authority to such an extent that it has been effectively overruled by such higher authority.”

He added that the Ninth Circuit had based its view on the Supreme Court decision in Bowers v. Hardwick, and noted that that decision has since been overruled by Lawrence v. Texas and that the Court has concluded that Bowers was wrong when it was decided and remained so now.  In addition, Judge White said that the Ninth Circuit had relied on “the mistaken assumption that sexual orientation is merely ‘behavioral,’ rather than the sort of deeply rooted immutable characteristic that warrants heightened protection from discrimination.”   The Supreme Court has cast aside that rationale, too, White wrote.

The San Francisco jurist brushed aside the Baker v. Nelson precedent in a footnote.  That ruling, he said, is “irrelevant” because it only involved a claim of a right of gay couples to marry, but the individual before him in this case — federal court staff attorney Karen Golinski — is already married.  She and her spouse, Amy Cunninghis, her partner of more than 20 years, were married during a brief interval when gay marriages were legal in California.

Undoubtedly, though, the House GOP leaders will invoke Baker v. Nelson when they respond to the Justice Department petition in the California case, and the proponents of “Proposition 8″ will surely do so, too, when they file their petition to defend that measure.

Responses to the DOMA petitions are now due August 2, unless extended.

(NOTE TO READERS: The texts of the new petitions are linked in the post below.)

 

Posted in Analysis, Cases in the Pipeline, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Gay marriage and Baker v. Nelson, SCOTUSblog (Jul. 4, 2012, 4:52 PM), http://www.scotusblog.com/2012/07/gay-marriage-and-baker-v-nelson/