On October 10, 1972, the U.S. Supreme Court issued its first formal thinking on whether same-sex marriage can be prohibited under the constitution. Two Minnesota students applied for a marriage license in Minneapolis and were denied, and the state supreme court upheld the state’s law. The couple asked the U.S. Supreme Court for review, and the court waved them away. Its reasoning in Baker v. Nelson was stated in a single sentence: “The appeal is dismissed for want of a substantial federal question.”
Forty-two years on, courts are deciding that, not only is there a substantial federal question, but that there are several. Whether it is equal protection for same-sex couples, or a fundamental right to marry that gays, too, can claim, or even discrimination based on gender, courts are clear that there is a question under the constitution about how the law treats the relationships of same-sex couples. Twelve federal court decisions in the last year alone have addressed this question, and all twelve have ruled that discriminatory marriage laws violate the constitution.
Baker‘s rebuff of an entirely respectable legal theory is still on the books. Like the court’s casual insult in Bowers v. Hardwick that a constitutional claim to protection against discriminatory criminal laws was “at best, facetious,” the court articulates the prejudices of its time if those prejudices are still common enough to be unrecognizable as belittlement.
That facetious claim later became the law in Lawrence v. Texas, and the substantial federal question the Baker court could not see is now pretty obvious to anyone. Which is not to say that everyone agrees on what the constitutional answer should be. But progress, like prejudice, can be hidden in plain sight. If you realize that a little over forty years ago the highest court in the land could not imagine that gays had a plausible reason to complain about laws that prohibited them from marrying, you can better understand the barriers that this movement has overcome.