It’s easy to second-guess the arguments lawyers make in high profile cases, and while that’s pretty much what I will be doing, I want to make clear that the arguments made in favor of marriage equality at the U.S. Sixth Circuit Court of Appeals this week were very good.
But an important colloquy could have gone better, in my opinion, and since we haven’t heard the last of it (there are many, many more cases still pending), I wanted to add my own thoughts about how to think about the question.
It was about a case I’ve mentioned before. Mark Joseph Stern at Slate describes what happened, focusing on the swing justice at the Sixth Circuit, Jeffrey Sutton:
In a 1972 case called Baker v. Nelson, the Supreme Court dismissed a challenge to Minnesota’s gay marriage ban “for want of a substantial federal question”—that is to say, the court didn’t see a constitutional flaw in the ban. The case was decided through a summary affirmance of a lower court ruling, meaning the justices didn’t hear arguments or write a real opinion. But a summary affirmance is generally considered to be binding precedent on lower courts
You might think that Justice Anthony Kennedy would confront Baker—the only Supreme Court precedent to deal directly with the merits of state gay marriage bans—when he overturned DOMA. But instead, he ignored it, perhaps in an effort to leave the whole question of state-level bans for another day. Every district court that has since struck down these bans worked around Baker by citing a somewhat ambiguous loophole: A summary affirmance might not be controlling precedent when it has since been undermined by “doctrinal developments.”
The question for Sutton, then, is simple: Does the trio of great gay rights cases (Romer, Lawrence, and Windsor) render Baker’s holding completely moot? Or does Baker remain binding precedent? Sutton seemed to lean toward keeping Baker on life support for now and letting the Supreme Court pull the plug, noting, “Even when you see one line of cases crumbling, lower courts aren’t allowed to infer, and anticipatorily overrule, this other line of cases. So as a matter of hierarchy, aren’t we stuck with Baker?”
But then Sutton seemed to walk back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” At the end of his colloquy on the topic, he seemed a little stumped, and more than a little frustrated.
Judge Sutton had a sound legal argument for following Baker, but he was missing the forest for the trees because, at exactly that moment, the U.S. Court of Appeals for the Sixth Circuit was hearing appeals in six cases from four states.
In 1973, it was possible for the highest court in the land to say that they could not see a federal question in a case where two men were denied the right to marry one another. In contrast, whatever else can be said in 2014, there is no doubt at all that there is a very prominent federal question about that subject. If there were not, then what on God’s earth was the Sixth Circuit doing? Not a single one of the challenges to state bans on same-sex marriage have been filed and left to gather dust. Serious lawyers with serious clients have answered every one of those complaints. While it is possible to debate the merits of their arguments, they are making serious arguments about something even they view as a serious question.
Stated another way, Baker is incompatible with the very fact that these cases are now before the courts. Of course there is a federal question today. Whatever else can be said about the presidential value of summary affirmances in general, the premise of the affirmance in Baker was based on premises about sexual orientation that have no continuing validity at all.
Judge Sutton could ultimately decide that Baker has not been overturned by the U.S. Supreme Court. As Dale Carpenter points out, that would actually be the least harmful loss for us, since it would require only about a paragraph of text in the Sixth Circuit opinion (about as much as the Supreme Court devoted to the Baker affirmance). The opinion would not need to go any further than saying “We are bound by Baker unless and until the Supreme Court overturns it.”
But that is to ignore what is right in front of the court’s nose. Something much more consequential than the Supreme Court has overtaken, if not overturned Baker. What was unimaginable to the courts then is common discourse now. Every court that has heard the argument over same-sex marriage knows for a fact that Baker v Nelson is a nullity.