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Testing the status of Baker v. Nelson

Five Puerto Rican same-sex couples and a gay rights advocacy group on Tuesday began an uncertain trip to a federal appeals court, where a potential obstacle to their marriage plea may await them.  Their lawyers filed a formal notice that they are appealing to the U.S. Court of Appeals for the First Circuit in Boston, to challenge a ruling a week ago by a judge upholding Puerto Rico’s ban on same-sex marriage.

Two years ago, the First Circuit said flatly that it was still required to follow the Supreme Court’s summary, one-sentence ruling in 1972, in the case of Baker v. Nelson.  That ruling, it said, is “binding precedent” which bars an argument that there is “a constitutional right to same-sex marriage.”  And, it noted, the Supreme Court has not overturned that ruling in more recent gay rights decisions.  The Baker decision said without elaboration that a plea for a right to marry a same-sex partner did not raise “a substantial federal question.”

The question now is whether the First Circuit will continue to adhere to that view, in the face of a broad wave of federal court decisions indicating that Baker v. Nelson no longer remained an obstacle to striking down state laws against same-sex marriage.   If the First Circuit holds fast, it could set up a split on this issue that could lead the Supreme Court to step into the same-sex marriage controversy in a way that it has so far avoided.

In his ruling on October 21 rejecting the couples’ challenge to Puerto Rico’s ban, U.S. District Judge Juan M. Perez-Gimenez said that he had no choice because of the 1972 precedent and because of the First Circuit’s comments about Baker v. Nelson‘s continued validity.  The Baker decision, he said, is still controlling, “even when other cases would seem to undermine the Supreme Court’s holdings….The Supreme Court is perfectly capable of stating its intention to overrule a prior case.”

The First Circuit is the federal judiciary region that includes Puerto Rico, so any ruling by that appeals court controls what federal trial judges in the circuit may do on the same question.  Quoting the First Circuit’s comments in 2012, Judge Perez-Gimenez noted that those judges had expressly avoided taking a position that would imply overruling Baker v. Nelson.  The appeals court also said that it would not take a position that “could overturn marriage laws in a huge majority of individual states.”

In fact, as matters have turned out since then, the number of states where same-sex marriage is now allowed has grown to thirty-two as a result of decisions by other federal appeals courts rejecting Baker v. Nelson as a precedent that they had to follow.

It is somewhat curious that the First Circuit made its comments about the 1972 precedent in the course of a decision that found unconstitutional a key part of the federal Defense of Marriage Act.  The invalidated provision barred all federal marital benefits to same-sex couples who already were legally married under their own states’ laws.  But in striking down the DOMA provision, the First Circuit
made clear that it did not have to face, and was not facing, the underlying issue of whether the Constitution allows states to prohibit such marriages.

The same provision of DOMA, of course, was later ruled unconstitutional by the Supreme Court in United States v. Windsor.  Although supporters of that provision had urged the Supreme Court to uphold it, relying in part on Baker v. Nelson as a precedent against recognizing same-sex marital rights, the Supreme Court did not mention that argument in its ruling.

The First Circuit has not yet had a same-sex marriage appeal before it, in the current round of cases, because such marriages already have been allowed in all of the mainland U.S. states that are in that region — Maine, Massachusetts, New Hampshire, and Rhode Island.  The Puerto Rico appeal will test its current view.

The appeal is by three same-sex couples who were married outside of Puerto Rico and want those marriages officially recognized, two same-sex couples who wish to marry, and the advocacy group, Puerto Rico Para Todos.

Meanwhile, another federal appeals court that many observers have regarded as likely to rule in favor of upholding state bans on same-sex marriage — the U.S. Court of Appeals for the Fifth Circuit — has given another indication that it is moving quite slowly on the issue.  In orders issued on Monday, it scheduled hearings on January 6 in cases from Louisiana and Texas.  A trial judge has upheld the Louisiana ban, but a different trial judge has struck down Texas’s ban.  A new lawsuit has been filed to test a ban in another state in that circuit — Mississippi.

It is widely assumed that another federal appeals court — the U.S. Court of Appeals for the Sixth Circuit — will rule soon on cases involving the marriage issue in all four states within that circuit.   Later on, the U.S. Court of Appeals for the Eleventh Circuit is expected to be reviewing the ban in Florida, although test cases in state court may be decided before that occurs.

Recommended Citation: Lyle Denniston, Testing the status of Baker v. Nelson, SCOTUSblog (Oct. 28, 2014, 4:50 PM),