Could a Brief 1972 Ruling Stop the Same-Sex Marriage Movement?

Lyle Denniston looks at a 1972 one-sentence Supreme Court decision that might be the basis for the Court to step in to decide the same-sex marriage issue.


“On the question of same-gender marriage, the Supreme Court has issued a decision that directly binds this court. [In Baker v. Nelson, in 1972] the Supreme Court dismissed the appeal ‘for want of a substantial federal question.’…This court will apply Baker v. Nelson, as the Supreme Court has instructed it to do so. As a result, the [same-sex couples’] constitutional claims challenging the Puerto Rico civil code’s recognition of opposite-gender marriage fail to present a substantial federal question, and this court must dismiss them.”

– Excerpt from a ruling issued Tuesday night by U.S. District Court Judge Juan M. Perez-Gimenez of San Juan, as a key part of the explanation of his decision to uphold Puerto Rico’s ban on same-sex marriage. His decision made this the first federal court, after a wave of decisions nullifying such bans, to rely on the 1972 Supreme Court precedent in Baker v. Nelson to reject same-sex couples’ challenge.


The Constitution’s grant of ultimate judicial power in the federal system to the Supreme Court has meant, at least since the 1796 decision in the case of Ware v. Hylton, that the Justices had the power to strike down state laws that conflicted with the national Constitution. In addition the Supreme Court has reminded lower courts, over and over again, that they must apply the constitutional decisions that the Supreme Court makes without second-guessing them; only the court, it has stressed, can overrule a binding precedent.

As America lately has watched the unfolding of the incredibly fast campaign to persuade courts to strike down state laws that forbid same-sex marriages, they no doubt have heard more than once that – so far, at least – the Supreme Court has not yet ruled that such state laws are unconstitutional.   In fact, the Justices have agreed only once to hear such a claim, doing so last year in a California case, but that case ended on a procedural problem that prevented a ruling on the issue.   And, this month, the court refused to hear seven appeals on the issue.

From the time, beginning a year ago, that federal and state courts started striking down bans on gay and lesbian marriages in decision after decision, they have been able to do so only by finding that they were not bound by a Supreme Court precedent that went the other way. They did not simply refuse, stubbornly, to follow the court’s lead, because they concluded that the Justices themselves had undermined that precedent so that it was no longer binding, on anyone.

That has been the judicial saga centered on Baker v. Nelson, a Minnesota same-sex marriage plea that ended with a one-line Supreme Court decision almost exactly 42 years ago – on October 10, 1972. Here, in its entirety, is what the Supreme Court said: “Appeal from Sup. Ct. Minn. dismissed for want of a substantial federal question.”

The court did not gather briefs or hold any hearings on that case, it simply acted in what lawyers and judges call “summary” fashion. That is the technique the court had used when a decision is so obvious that it is not worth taking the time to explore it in any detail.   And that is a technique, however limited it may seem in scope, that creates a precedent binding on lower courts.

Until Tuesday, in the sweep of decisions by federal courts against state bans on same-sex marriages, only one court has upheld such a ban (a federal District Court in Louisiana), and that judge put Baker v. Nelson aside in a footnote. Because Louisiana officials, in defending their ban, had not argued that the 1972 precedent controlled the outcome of that case, Judge Martin L.C. Feldman said that he “need not enter the differing contentions about the viability of Baker v. Nelson.” He upheld the ban on other grounds.

On Tuesday, however, Baker v. Nelson finally had its day in a federal court opinion, when U.S. District Judge Juan M. Perez-Gimenez of San Juan rejected a constitutional challenge to a Puerto Rico law – traced back to an old Spanish civil code – that marriage was open only to one man and one woman.   Since the Supreme Court had never backed off from that precedent, the judge said he had no power to fail to obey it.

He noted that the federal appeals court (to which any appeal of his ruling will go) had, as recently as 2012, said that Baker v. Nelson was still a binding precedent on the question of state power to control who can get married.

That appeals court (the U.S. Court of Appeals for the First Circuit, based in Boston but with jurisdiction over Puerto Rico cases as well as over states in that federal court region) had said that before the Supreme Court in 2013 in the case of U.S. v. Windsor had given same-sex marriage an apparent boost by striking down part of the federal Defense of Marriage Act.

Although defenders of the Defense of Marriage Act’s ban on federal marital benefits for same-sex couples already legally married had urged the Supreme Court to rely upon Baker v. Nelson to uphold that ban, the Supreme Court never mentioned that precedent in the Windsor ruling.

That did not trouble Judge Perez-Gimenez. He cited language in the Windsor decision talking approvingly about state power to control who may get married. Together, the judge said, the Windsor and Baker decisions meant to him that the question of marital rights is to be left to the state governments, including the government of Puerto Rico.

To those courts that had ruled that Baker was no longer binding, the San Juan judge retorted that they had used their “ingenuity and imagination” to come up with “nebulous” conclusions suggesting that Baker was no longer viable. They had no power to do that, he wrote.

Lawyers for the Puerto Rico couples involved in the case have said they will take the case to the First Circuit Court in Boston. If that court decides to stick with what it said in 2012, that could create a distinct split in the federal appeals courts on how to treat Baker v. Nelson.   And that might be the basis for the Supreme Court to step in to decide the same-sex marriage issue.

The Supreme Court, of course, is the one court with authority to say in a final way that the 1972 precedent has lost any vitality and is to be ignored. Or, it is the one court that could give that simple ruling a new stature, and in the process, perhaps, stop the wave of decisions in favor of same-sex marriage, leaving that to each state to decide, if it hasn’t already.

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