No question

by David Link on February 15, 2014

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.

 

{ 5 comments }

Tom Scharbach February 15, 2014 at 5:01 pm

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.

The various ways in which lower federal courts have dealt with the precedential value of Baker‘s summary dismissal (about a dozen cases, I think, but I’m no expert) will be the subject of a law review note, or part of a broader law review article, in time.

The broader cultural issue you raise is the more important issue.

I was thinking, while I was reflecting on the life of a family member who died last night, that next month will be the 45th anniversary of the night that another young man and I were threatened with a sodomy arrest in Crown Point, Indiana, where we had been campaigning for Eugene McCarthy. We were told to get out of town and stay out. Needless to say, we high tailed it.

I was thinking last night that if we had been arrested, I would never have finished college, served in the military, gone to law school, become a partner in a national law firm or otherwise have lived the life I have been privileged to live. I don’t know how my life would have evolved, but I know that many doors that were open to me would have been closed, hard shut.

I remember lot of people who, along the way from that night in 1968 to the present, paid a price for being gay or lesbian, in many different ways. I remember a few who crumpled into bitter, closeted retreat. I remember more who paid the price, shook off the fear and fought the fight for equality.

All of the people I remember who chose to fight, along with many others I have never met and never will, contributed in large ways or small, to building the cultural foundation on which the Supreme Court decision establishing marriage equality as the law of the land will stand.

The fact that the Supreme Court can imagine that gays and lesbians have a claim to marriage equality is a testimony to the sacrifice and work of the thousands upon thousands of foot soldiers in the struggle for equality, men and women who made sacrifices, large and small, to bring us to this day.

It now looks like I will live to see the day when I will be able to marry. I will have so many men and women to thank on that day, for that day, when it comes.

Jorge February 15, 2014 at 8:12 pm

Hope you and your family shall be well, Tom.

What both of you said is well said.

I remember lot of people who, along the way from that night in 1968 to the present, paid a price for being gay or lesbian, in many different ways. I remember a few who crumpled into bitter, closeted retreat. I remember more who paid the price, shook off the fear and fought the fight for equality.

All of the people I remember who chose to fight, along with many others I have never met and never will, contributed in large ways or small, to building the cultural foundation on which the Supreme Court decision establishing marriage equality as the law of the land will stand.

Now let’s blur the lines a little bit. “If a tree falls in the forest… I’ll kill the bastard what done it!” The simple decency of the those who paid a price has had its tell.

Dale of the Desert February 16, 2014 at 4:42 am

If a tree falls in the forest, will Schrodinger’s cat die? If a soldier falls in the line of the struggle, will his fall be heard? And will Schodinger”s cat live?

Tom Jefferson III February 21, 2014 at 8:00 am

If I may insert a bit of undergraduate/pre law thinking about this matter…

Initially the Supreme Court did not want to apply the equal protection clause to anything but race/ethnicity/religion..and even getting them take those type of cases seriously was an uphill battle.

The 1970s was when the court began to look at the issue of sex/gender discrimination as something that might warrant some legal review — although it was given much less then race/ethnicity/religion.

That was an uphill battle and change was slow. In the 1980s many states still had laws on the books allowing a man to rape his wife. Lots of laws dealing with violence against women and domestic abuse, had to changed.

Romer v. Evans (1996) was pretty much the first time that the court said that anti-gay discrimination might warrant legal review — although much less then it was to sex/gender.

Tom Jefferson III February 21, 2014 at 8:02 am

Interestingly enough, in light of the legal advancements being made…the only two classes of people that the court has not really dealt with in a fair/consistent manner would be

(1) Native Americans and
(2) Americans that support Third Party/Independent candidates.

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