Supreme Court Nominee Addresses Same-Sex Marriage — Sort Of

Jim Burroway

June 30th, 2010

The subject of same-sex marriage came up in today’s Senate confirmation hearing for Elena Kagan’s nomination to the Supreme Court. In it, Sen. Chuck Grassley (R-IA) asked about the 1972 case of Baker vs. Nelson, in which the US Supreme Court refused to review the decision by the Minnesota State Supreme Court, which held that denying same-sex marriage was not a violation of the Due Process Clause. That US Supreme Court Decision consisted of a single sentence dismissing the case “for want of a substantial federal question.”

Here is how Kagan fielded Grassley’s question:

Sen. Chuck Grassley: Marriage is a state issue. Do you believe that marriage is a question reserved for states to decide? And I’m only seeking your opinion because I know there might be cases coming down the road. Do you believe that marriage is a question reserved for states to decide?

Elena Kagan: Senator Grassley, there is of course a case coming down the road, and I want to be extremely careful about this question and to in any way prejudge any case that might come before me.

Grassley: That’s your right. So you don’t want to say anymore, is that what you’re saying?

Kagan: I think I’ll leave it at there given the…

Grassley: Okay. Well let me follow up. Do you agree that the supreme court’s decision in Baker vs. Nelson, 1972, holding that the federal courts lack the jurisdiction to hear challenges to state marriage laws “for want of a federal question,” do you agree with that decision? Why or why not? Is it settled law, in other words?

Kagan: So I think that that… my best understanding is that that decision has some precedential weight, but not the weight of a quote-unquote normal decision. [edit] My understanding is that there is actually a question about what kind of precedential weight such a decision is entitled do, and arguments on both sides of that. I think, you know, probably that the better view, or the … the view that most people hold, I think, is that it’s entitled to some precedential weight, but not the weight that would be given to a fully argued, fully briefed decision.

Thomas Kraemer

July 1st, 2010

I was a member of Jack Baker’s gay liberation group when he was taking his marriage case to the U.S. Supreme court and I clearly recall two things:

First, Baker bragged about using a “loophole” that forced the U.S. Supreme Court to actually issue a ruling on his case. Baker knew that the court typically refuses to hear a case and merely allows the lower court ruling to stand. My understanding is that the legal trick Baker employed is no longer available. It appeared that the Supreme Court was irritated by this law student’s gamesmanship and so they responded, with equal gamesmanship, by issuing a very unusual and ambiguous one sentence ruling. As a result, for several decades afterward, no court fully recognized Baker’s case as being precedent. No court cited Baker as central to their rulings on numerous gay rights cases, even though anti-gay lawyers have always cited Baker’s case in their arguments. All courts have viewed this case as being merely a law student’s gay activism project, which was not supported by the mainstream legal community. Courts have correctly viewed the ruling as having little legal reasoning behind it.

Second, I recall that Baker was angrily denounced, by both straights and virtually all gay people, for seeking to legalize gay marriage. The straights hated him for the same homophobic reasons as today, and virtually all younger gay people thought that marriage was contrary to the goals of sexual and gay liberation at that time.

Another law student friend of mine took me to his constitutional law class one day when a very liberal law professor expressed his fear that Baker’s then pending marriage case would set a dangerous precedent and would setback gay rights efforts in the future. This professor told Baker that a more successful path would be to pursue a series of incremental gains in civil rights for gay people instead of trying to win the most controversial gay rights first. Fortunately, the professor was wrong about Baker’s case setting gay rights back, but he was correct that the case would be cited for decades to come. Hopefully, no future court will cite it as the reason to ban gay marriages.


July 2nd, 2010

Reading between the lines here, I think that means that it doesn’t have any significant precedent. We also know she is pro gay from her D.A.D.T. answer.

Priya Lynn

July 3rd, 2010

But Ginger, Kagan has previously come out and said there is no constitutional right to equal marriage.


July 3rd, 2010

Kagan is a bad pick for several other reasons (especially as regards the first amendment), but these hearings are just a charade anyway..

Michael Ejercito

July 19th, 2010

Baker had been cited in state and federal court rulings, such as Hernandez v. Robles, 2006 NY Slip Op 05239 [7 NY3d 338] and Wilson v. Ake, Case No. 8:04-cv-1680-T-30TBM, and Adams v. Howerton, 673 F.2d 1036.

As for cases to cite to justify banning gay marriages, there are plenty to cite aside from Baker. The anti-bigamy Supreme Court cases (Reynolds v. United States, 98 U.S. 145, Murphy v. Ramsey, 114 U.S. 15, and Davis v. Beason, 133 U.S. 333). The most significant is Murphy, which was cited in Davis.

From Murphy:

“f we concede that this discretion in Congress is limited by the obvious purposes for which it was conferred, and that those purposes are satisfied by measures which prepare the people of the territories to become states in the Union, still the conclusion cannot be avoided that the act of Congress here in question is clearly within that justification. For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.”

This quote was cited as a justifying rationale in Davis, which upheld a law prohibiting bigamists from voting against a First Amendment challenge. First Amendment challenges use a level of scrutiny at least as high as the level of scrutiny used in equal protection claims, so the rationale in Murphy should be sufficient to uphold gay marriage bans.

And one last thing to remember is that neither Baker, Reynolds, Murphy, or Davis would be sufficient to stop passage or ratification of a gay marriage amendment, except as their arguments can persuade the members of Congress and the state legislatures, any more than Minor v. Happersett stopped the passage and ratification of the Nineteenth Amendment.

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