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.