Monday, August 13, 2012

The Status of Baker v. Nelson and Summary Affirmances More Generally

By Mike Dorf

Last week, a federal district judge rejected a challenge to the Hawaii law that denies legal recognition to same-sex marriage.  Much of the news coverage of the ruling in Jackson v Abercrombie focused on the judge's argument that changing the definition of marriage should be left to the legislature.  What did the court have to say in response to the objection that the courts have not left the field of defining marriage to state legislatures?  After all, in Loving v. Virginia, the U.S Supreme Court invalidated a state ban on interracial marriage.  Here is how the judge responded:
"In Loving, however, the Supreme Court was considering the long recognized right to marry.  The case did not involve expanding the traditional definition of marriage as being between a man and a woman.  This case presents a different right, the right to marry someone of the same sex."
But that simply restates the question.  Of course Loving "did not involve expanding the traditional definition of marriage as being between a man and a woman."  But it did involve expanding the traditional definition of marriage, which is all that the plaintiffs said.  Nobody claims that bans on same-sex marriage literally violate the holding of Loving.  The argument is that Loving shows that a state tradition of prohibiting some kind of marriage is not by itself sufficient to uphold that prohibition.  

To be sure, this argument is not sufficient to establish a right to same-sex marriage.  After all, states have traditionally banned marriages involving very young minors as well as marriages between parents and their offspring, and those bans are valid.  So a traditional marriage ban can be constitutional--but in such circumstances, it's not the tradition alone that makes the ban constitutional; it's that the ban serves some valid interest.  I won't get into the interests that the Jackson court and others think support same-sex marriage bans, except to say that they are certainly not on the order of the interest served by forbidding eight-year-olds to marry.

Now I want to discuss another ground that the court gave for upholding the Hawaii law.  The court held, in the alternative, that the Supreme Court's 1972 ruling in Baker v. Nelson forecloses recognizing a federal constitutional right to same-sex marriage.   I believe that this conclusion is wrong, albeit not obviously so--and in an interesting way.

In Baker  the Court summarily affirmed a Minnesota Supreme Court decision rejecting a right to same-sex marriage.  Summary affirmance means that the Court did not bother to hear oral argument or write an opinion.  That result was hardly surprising.  It was 1972, after all, when the American Psychiatric still classified homosexuality as a mental disorder.

In Jackson, the district court relied on the following propositions: 1) A summary affirmance is a decision on the merits by the Supreme Court that is entitled to the same precedential weight as any other decision, at least so far as the lower courts are concerned; and 2) no post-Baker Supreme Court case undermines its holding.  In particular, neither Romer v. Evans nor Lawrence v. Texas involved same-sex marriage and the Court in Lawrence specifically noted that the case did not involve a claim to state recognition of any relationship.

Let's take those propositions in reverse order.  It's true that no post-Baker precedent recognizes a right to same-sex marriage, but the content and tone of Lawrence certainly set the groundwork for one.  Justice Scalia said as much in dissent, and while one might dismiss a dissenter's effort to exaggerate the implications of the majority's reasoning, subsequent state court cases--especially the Massachusetts Supreme Judicial Court's ruling in Goodridge v. Dep't of Pub. Health--have relied on Lawrence as a building block of a right to same-sex marriage.  If the U.S. Supreme Court finds a right to same-sex marriage in the next few years, then it would be fair to say that Romer and Lawrence were key way stations along the path to that decision, just as we now understand civil rights decisions like Sweatt v. Painter--which formally applied rather than overruled Plessy v. Ferguson--as way stations en route to Brown v. Board of Education.

So in common parlance Romer and Lawrence did undermine Baker.  The problem with the foregoing analysis is a 1989 Supreme Court case that the Jackson court could have cited in favor of its approach but neglected to: Rodriguez de Quijas v. Shearson/American Express, Inc..  It states : "If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving th[e Supreme] Court the prerogative of overruling its own decisions."  Applying this maxim, it doesn't matter whether Romer and Lawrence have undermined Baker.  A federal district court must still follow Baker.

But maybe not, given that Baker itself was a summary affirmance.  In general the lower courts treat Supreme Court summary affirmances as merits precedents, but the rationale for doing so is that a summary affirmance gives a pretty good view of the Supreme Court's views on the merits.  That rationale loses considerable force where there are subsequent reasoned opinions by the Supreme Court pointing in other directions.

To be sure, if it were up to me, I would do away with the Rodriguez de Quijas rule altogether.  I said as much in a 1994 U Penn Law Review article, and since then the Supreme Court's docket has continued to shrink.  With a very low likelihood of Supreme Court review in any given case, insisting that the lower courts adhere to old precedents in the teeth of subsequent undermining-but-not-quite-overruling decisions ensures that many litigants will be subject to rules of decision that would likely be overruled if reconsidered by the Supreme Court.

But even setting aside my general opposition to the Rodriguez de Quijas rule, applying it to a summary affirmance from an era when the Supreme Court was using summary affirmances as a de facto certiorari denial makes little sense.  And as far as I have been able to ascertain, no Supreme Court case invokes the Rodriguez de Quijas rule where the old decision was simply a summary affirmance.

Thus, although reasonable minds can differ, I think the better approach for the lower courts is to disregard Baker and to treat the constitutionality of laws barring same-sex marriage as an open question.  I would resolve that open question in favor of a right to same-sex marriage, but that's a longer discussion for another day.


Joe said...

The USSC in Mandel v. Bradley noted that lower courts are bound by summary affirmances when the "precise issues presented and necessarily decided by those actions" are involved.

The question of intermediate changing doctrine is interesting and has some force in this area. Baker, e.g., suggests Griswold is mainly about marital privacy, a conclusion that later precedents rejected. It also dismisses the sex discrimination claim in a way U.S. v. VA would probably deem too summary. It appears to use rational basis review.

But, the "precise question" rule is key in these cases. The DOMA cases, e.g., do not raise the precise question, so Baker is clearly not binding. It is at best informative.

SSM is a much more logical case, but even there, Hawaii has civil unions. That alone changes the dynamic -- the state interest in denying SSM when civil unions strongly protect same sex couples alone shows the "precise question" is not here.

Prop 8 also wasn't the 'precise question' as the appellate ruling showed. This case is a more valid application but it is in no way compelling. But, the 100+ opinion of the district court judge showed no big desire of restraint.

toryburchshoesgoods said...

applying it to a summary affirmance from an era when the Supreme Court was using summary affirmances as a de facto certiorari denial makes little sense. And as far as I have been able to ascertain, no Supreme Court case invokes the Rodriguez de Quijas rule where the old decision was simply a summary affirmance.Windows 7 professional activation Key
Windows 7 professional Key
Windows 7 ultimate Activation Key
Buy Windows 7 Key

Dewaite Houwad said...

awful." Holwww.windows7keysp.commes thought that a contract is simply an option to either fulfill the terms of the contract or to breach and pay damages. Law-and-econ-inspired academics tend to agree and often generalize to law more broadly. This issue was at the

Zirong Zhang said...

Law-and-econ-inspired guild wars 2 keyinstructors tend to acknowledge and quite often generalize for you to regulation additional generally. This challenge was at the core connected with Hashim's disagreement having Neil's conversation on the RS goldlevy electricity possessing throughout CJ Roberts's thoughts and opinions inside the healthcare event.

diablo ti said...

I have to say your article inspires me to the most, it is so instructive to tell others how to understand that in such a special view.I will share your articles with my friends, i think they will like them just like me. What's more, can you update them more frequently? I am a fan of online games. rs gold , runescape gold

Eillie Rocke said...

The welfare he provided is to improve the thirty two points of crit rating buy wow gold. Better than nothing, for RAID, it has little value. In the final analysis, peeling, after all, is a WOW gold-based profession. If it is pure PVE of RAID cheap wow gold player, I do not recommend that you to use this skill.

Upton said...

Forza Motorsport 5: Turn 10 reassures those with slow Internet connections
Dan Greenawalt, one of the buy runescape 07 account main rsgold causes of Turn 10, spoke to the Official Xbox Magazine magazine Forza Motorsport 5, and more specifically, data storage "rise" to the nube.Seg n seems Drivatar system is stored in the cloud along with "other cheapest 2007 runescape gold things", but still ensures that decisions are taken as to the architecture runescape 2007 gp of the game and what "works when and how '." Forza Motorsport Files 5 sends and receives from the cloud will be comparatively small, "said Greenawalt. "Is not always the quality of the connection, it's also the cloud processing. So if you try to offer a 1080p video stream, okay, you'll have to issue a 1080 giant texture. Another thing is that you send certain data and that the cloud condense on different data, it has to do with processing and sending small data packs ".

sandi said...

I am grateful for the information that I have seen this, with this content can make me grow my knowledge, once again I thank you wrong me kami jual alat bantu sex, sebuah alat bantu pria dan alat bantu wanita yang dapat untuk di gunakan memuaskan diri sendiri, pengetahuan kami ada disini

amine lahragui said...

thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه
thanks so much i like very so much your post
فوائد الحلبة فوائد الزنجبيل فوائد الرمان فوائد زيت السمسم علاج البواسير فوائد البصل فوائد اليانسون فوائد الكركم فوائد الزعتر قصص جحا تعريف الحب علامات الحمل

aminos lahragui said...

thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق

Dagdgsd Dffbd said...

Nice article, thanks for the information. It's very complete information. I will bookmark for next reference
jaring futsal | jaring golf | jaring pengaman proyek |
jaring pengaman bangunan | jaring pengaman gedung

sylvia Emi said...

What will i do to thank Doctor Atete the great spell caster for the help he rendered to me? how do i appreciate him for helping me get my lover back after 9 years of breakup? this is a testimony i must share because Doctor Atete is a God on earth. My heart is filled with Joy because Meyer the father of my three children is back. He left me 9 years ago for Jessica and said he does not love me any more because we had a fight, though i did all i could to get him back but my effort seems abortive just 4 days ago a friend of mine told me about Doctor Atete who helped her to solve all relationship problems so i decided to contact him also via email. Today i want to let the world know that Doctor Atete's spell is active, he is a man of his word and can be trusted 100% because as i speak now Meyer the father of my three children came back to me yesterday on his knees begging me to forgive and accept him back. Do you need help of any kind then Contact Doctor Atete today via Email: or website: or Whats-app: +2348068784784 or call him: +2348068784784 or +2347056505954