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.
20 Comments for “Baker Implodes”
posted by Tom Scharbach on
Nobody can read into Justice Kennedy’s mind, but several things seem to be relevant considerations:
(1) Windsor could have been decided on a “reserved powers” analysis without touching upon the constitutional arguments that have been driving the decisions since Windsor. Many legal experts expected a narrow interpretation of DOMA, but that was not the path that the Court followed.
(2) Instead, Justice Kennedy inserted constitutional reasoning into Windsor that was more suited to the legal issues presented by Perry; the Windsor opinion, in relevant part, reads like the opinion that we would have expected from Justice Kennedy had Perry not been decided on standing, and it is this fact that gives most legal observers the basis on which to expect Justice Kennedy to rule in favor of marriage equality in the cases now moving forward.
(3) Justice Kennedy confronted no legal necessity to address Baker in deciding Windsor, and he did not. I don’t suppose that this was an oversight. Justice Kennedy insisted in Windsor that the case did not address the question of the constitutionality of marriage bans in state laws and constitutions; by ignoring Baker, Kennedy was able to maintain that position. Had he mentioned Baker he could not.
(4) The Court will have to deal with Baker in rendering a decision on the cases now moving forward. The Court could overturn Baker directly, I suppose, but is more likely, it seems to me, to use the “doctrinal developments” reasoning that formed the basis of Hicks v. Miranda among others.
As the article points out, “doctrinal developments” is the line of reasoning used by the lower courts in dealing with Baker, and although it may be “a somewhat ambiguous loophole” — by “somewhat ambiguous” I assume the Slate writer means “requiring a judgment call” — it seems to me the likely, and probably correct, way to deal with Baker.
Baker is a footnote. It was a one sentence opinion in a case that the Court could not dismiss on certiorari — the case came before the Court on direct mandatory appeal from a state Supreme Court. Had the case come through federal channels, I have no doubt that the Court would have refused the writ.
I can’t believe that Judge Sutton is giving serious consideration to writing an opinion deferring to Baker, but then again he is a notorious wild card.
Judge Sutton was, until the Obamacare decision, considered to be on the “short list” for future appointment to the Court by a Republican president; since the Obamacare decision, his name has been mud in conservative circles, and his prospects have dimmed.
Judge Sutton cannot, it seems to me, decide the case on Baker without digging his hole deeper; the politics of conservative Supreme Court nominations will not look kindly upon an obvious evasion. If Judge Sutton intends to use the marriage cases to resuscitate any hopes he may harbor of future nomination to the Court, he will have to rule outright and persuasively against marriage equality.
I listened to all four hours of oral arguments, paying particular attention to Judge Sutton’s exchanges. I have no idea how he will rule, although, on balance, it seems more likely to me that the exchanges suggest that he will either rule, grudgingly, in line with the Windsor reasoning than otherwise.
We’ll know in a month or two.
posted by Houndentenor on
Baker is borne of bigotry. It’s that simple. I don’t blame any justice for not wanting to touch it.
posted by Jorge on
Stated another way, Baker is incompatible with the very fact that these cases are now before the courts.
That’s an interesting argument, but it’s the weak point of your analysis. Why should the correct interpretation of the Constitution depend on how many people complain about a violation? Are not this site’s liberal commenters fond of saying no matter small the real percentage of gays in this country, it makes no difference about whether or not we are entitled to our rights? Then when the shoe is on the other foot, neither does it matter how many cases are filed.
The fact that a lot of people complain is not evidence that the Supreme Court and the lower court that originally decided the Baker case erred at any step of their legal analysis, and it’s certainly not evidence a lower court can use that the Supreme Court erred in its analysis of how to use its own discretion.
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?
Seems to me you’re describing more of a “very prominent” Sixth Circuit question than a “very prominent” federal question, and you’re switching between different definitions of “substantial” to support your argument. If the Supreme Court decision that there was no “substantial federal question” meant there was no Constitutional issue, then that analysis is binding not matter how many people file suit since.
Now you’re saying the Supreme Court really meant to say “no substantial federal question” means not a lot of people nationally think there’s issue. But what you have described with four lawsuits in the Sixth Circuit is more like a “substantial Sixth Circuit question.” The Sixth Circuit is not allowed to extrapolate that something is a “very prominent” federal issue just because a lot of people file in the Sixth Circuit. Nor is it its role to decide that the Supreme Court erred in its discretion of whether or not Baker presented a “very prominent” federal question. That is simply not the Sixth Circuit’s role.
Perhaps the better way to interpret Baker would have been to consider it binding precedent only on the Sixth Circuit. But unfortunately, either nobody thought of that, or that was tried and failed. So more like than not, the correct definition of “for want of a substantial federal question” means the precedent is that gay marriage bans are constitutional, regardless of how many people file suit about it.
Look for your salvation elsewhere than in the numbers game.
posted by Houndentenor on
No, it does not matter if gay people are 1% of the population or 10%. That has nothing to do with whether or not people have rights. What is often at issue (and this is coming up a lot recently) is that in order to file a suit, you have to have standing. A gay couple that has specifically faced discrimination based on their relationship not being legally recognized (as was the case in Windsor) has standing. A clerk who thinks gay people are icky does not have standing to contest marriage equality.
posted by Jorge on
Baker is a footnote. It was a one sentence opinion in a case that the Court could not dismiss on certiorari — the case came before the Court on direct mandatory appeal from a state Supreme Court. Had the case come through federal channels, I have no doubt that the Court would have refused the writ.
Ah. Very good. That is very helpful.
posted by Houndentenor on
Exactly. Baker ruled that the federal courts had no jurisdiction over this matter. In other words they left it to the states. That in an odd way made sense until there were conflicting decisions and a situation in which the federal government had a law (DOMA) that was in conflict with a state (in this case Massachusetts) regarding marriage. DOMA it would seem created the opening for the Supreme Court to rule on marriage? Is that right? And I will continue to believe that the case was decided based on bigotry. There are plenty of examples of that going back to eras in which the majority of justices were slave owners and a times when quite a few justices belonged to the KKK.
posted by Jorge on
That in an odd way made sense until there were conflicting decisions and a situation in which the federal government had a law (DOMA) that was in conflict with a state (in this case Massachusetts) regarding marriage. DOMA it would seem created the opening for the Supreme Court to rule on marriage? Is that right?
Once you get to the point where you’re arguing there are two separate legal doctrines (traditions, I’m looking for the right word) on marriage, one state and one federal, that’s when my eyes begin to water and I want to call it quits.
posted by Tom Scharbach on
Once you get to the point where you’re arguing there are two separate legal doctrines (traditions, I’m looking for the right word) on marriage, one state and one federal, that’s when my eyes begin to water and I want to call it quits.
I’d encourage you not to throw your hands up in the air. Instead, read the cases as published and the commentary written by legal experts (e.g. SCOTUS Blog) without a political axe to grind.
At lot is at stake, and the legal and constitutional issues are complicated, given that our system of government is a federal constitutional republic, balancing competing state and federal interests. Dealing with “two separate legal doctrines (traditions, I’m looking for the right word) on marriage” — often in conflict, I might add — is inherent in the governmental structure that the founders created.
And just to make matters worse, the legal and constitutional questions play out against the backdrop of our nation’s ongoing experiment — “… a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal …”, as Lincoln put it — and the answers change as the our national experiment proceeds.
Was Plessy right, or was Brown? I think that a fair argument can be made that both were right — that at the time Plessy was issued, “separate but equal”, as yet untried, reflected the best thinking of the time, but 75 years later, after “separate but equal” had been tested and found wanting, Brown (“separate is inherently unequal”) was inevitable.
So it is with marriage equality. At the time Baker was issued, the Supreme Court could opine, with a straight face, that no substantial federal question was raised by marriage inequality. Forty years later, after Romer, Lawrence, and Windsor, I think don’t think that the Court can hold to that opinion. We will find out in a year or two, and my guess is that the Court will divide on the question.
All this is to point out the obvious — understanding the questions is not an easy task, and the sorting out the answers — both legal and constitutional — requires balancing of competing interests against the backdrop of our national experiment. Cut and dried, black and white, answers aren’t available. That’s why we have seen, and will continue to see, differing court opinions on the matter of marriage equality, until the Supreme Court settles the matter.
And then, assuming that the Court settles the matter in favor of marriage equality, we will enter into a long period of sorting out what the Court’s decision means and how it applies in the particular, just as we did post-Brown.
The questions raised by Brown are by no means settled, and sorting out the implications of “equal means equal” will be a long time coming, too.
posted by Jorge on
I don’t want to sound dismissive, Tom but I’ve read enough judicial opinions that I ask myself, if these and those issues are so important that they’re examined so meticulously, why do I need to get involved with that? Wouldn’t it be better for me just to do my best to do what I think is right (there goes my legislating morality philosophy again) and have that be judged fairly?
Of course, I find it distressing how some people act so immature just because a decision or several go against them, and I put high standards on the judges who issue them. It’s important for me to understand where judges have high standards so that I can lead by better example.
How much mastery is really needed? Is that laziness or just the best way to specialize?
posted by Mike in Houston on
And then there are those pesky “full faith & credit” and “commerce” clauses even before you get to 14th amendment issues.
posted by Tom Scharbach on
A state court trial judge in Tennessee ruled today that Baker remains controlling precedent and that the “doctrinal developments” argument should more properly be raised in an appellate court with broader authority than that of a trial judge.
The Tennessee case is the first case to rule against marriage equality since Windsor and is also the first case to find Baker controlling precedent.
Tennessee’s ban on same-sex marriage was ruled unconstitutional by a federal judge months ago, and the case was among those heard by the 6th Circuit last week.
posted by Jim Michaud on
Tom, technically the streak is intact. This was a state judge’s ruling. The streak is at the federal level.
posted by Tom Scharbach on
Well, maybe.
Don’t forget that we’ve had victories in Florida state courts (In Re Estate of Bangor; Brassner v. Lade; Pareto v. Ruvin; Huntsman v. Heavilin), Colorado state courts (Brinkman v. Long; McDaniel-Miccio v. Colorado), Arkansas (Wright v. Arkansas), New Mexico state courts (Griego v. Oliver; Stark v. Martinez; Newton v. Stover), and New Jersey state courts (Garden State Equality v. Dow).
posted by Tom Scharbach on
Two notes:
(1) Lyle Denniston at SCOTUSblog has an interesting reflection on the so-called “streak”.
(2) The 4th Circuit refused to issue a stay of its decision declaring Virginia’s ban on same-sex marriage. The Supreme Court is expected to issue a stay, as it did in the Utah case. Chief Justice Roberts is the justice assigned to emergency hearings for the 4th Circuit.
posted by Kosh III on
More on the Tennessee case. BTW the Judge is supposedly very conservative.
http://www.nashvillescene.com/pitw/archives/2014/08/12/in-which-i-hold-my-nose-and-defend-judge-simmons
posted by Tom Jefferson III on
Part of the issue with the Baker ruling may have been that the U.S.S.C. initially didn’t want to apply the 14th Amendment equal protection to the issue of sex or gender-based discrimination by the government.
When the 14th Amendment (and Article 5th) was brought back to life — as a defender of civil rights — the court gradually came to say that; 1. most of the federal bill of rights now applied to the states and 2. the government generally cannot discriminate on the basis of a citizen’s race, color or religion.
It was not until 1976 that the U.S.S.C. applied to equal protection clause to sex discrimination, even then it put it on a lower level of legal review then race, color or religion. For example, it was not until 1996 that the court found that the Virginia Military Institute’s men-only policy was unconstitutional.
Now where is “sexual orientation” is this realm? It may one day been treated as being similar to sex discrimination. Well, since Romer v. Evans it has put in the lowest standard of Constitutional review.
posted by Tom Jefferson III on
It is pretty easy for a State or the Federal government to come up with a “rational” reason for a particular law.
It is harder to come up with an ‘intermediate scrutiny’ reason for a law — where sex discrimination generally falls — and it is pretty much impossible to do so with ‘strict scrutiny’ — where race, color and religion falls.
Their are some — odd — exceptions to the rules in recent times. The high court has not been especially kind to American Indians — or third political parties.
No one is entirely sure what legal standard the court uses with regards to third political parties, because the case law in that area is just weird.
posted by Mark F. on
Since SSM bans are sex discrimination, plain and simple, why hasn’t this avenue been pursued? Sex discrimination is usually subject to “Intermediate Scrutiny,” and SSM bans surely fail that test. Sexual orientation need not enter into it at all.
posted by tom Jefferson 3rd on
Some nations have interpreted sex to include sexual orientation in terms of anti-discrimination protections. Had the ERA been ratified, it might be worth pursuing.
In America, it took awhile for the high court to show any interest in sex discrimination, and maybe their a concern that the court’s not ready to look at a ban on ssm as sex discrimination.
posted by Peter CH on
Had the ERA been ratified, what would it have to say about sexual orientation or same-sex marriage? What would it have to say about transsexual/transgender individuals?
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
That sentence may have been more plainly understood when it was drafted — or perhaps it was intended to be so utterly vague? You can base almost any argument on that.