Same-sex marriage cases governed by 1972 SCOTUS decision?

Could a 1972 SCOTUS decision cause a divide among circuits and send same-sex marriage cases on a fast track to the U.S. Supreme Court? This is the question raised in a recent Washington Post article about the case of Baker v. Nelson (1972), in which the U.S. Supreme Court summarily dismissed a challenge to Minnesota’s ban on same-sex marriage with one line: “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.” Baker involved Richard Baker and James Michael McConnell, who applied for a marriage license in Minnesota in 1970 and were denied based on the state’s law limiting marriage to opposite sex couples. They pursued a legal challenge to this law, asserting that it violated their fundamental right to marry under the U.S. Constitution. The Minnesota Supreme Court denied their claim and the ACLU petitioned the U.S. Supreme Court to hear their case. The high court responded with their one line dismissal.

Baker has been widely disregarded as no longer relevant by judges in the circuits that have struck down same-sex marriage bans. This is largely due to the swath of decisions that have come from the high court since Baker was decided that have been more favorable to gay rights, including Romer v. Evans (1996), Lawrence v. Texas (2003) and U.S. v. Windsor (2013). According to an article on Slate.com, although summary dismissals from the U.S. Supreme Court are generally binding on lower courts, it is possible that “doctrinal developments” from future cases could undermine such a decision’s value as legal precedent. The Supreme Court’s decisions in cases like Romer, Lawrence and Windsor did not specifically overrule Baker, but have given lower courts some latitude to disregard it when reaching decisions about the constitutionality of same-sex marriage bans.

Baker may be a pivotal issue in the 6th Circuit’s forthcoming decision about the six cases it heard on August 6 involving various issues related to same-sex marriage from all four states in its jurisdiction. According to the Post, during oral arguments in those cases Justice Sutton “repeatedly asked lawyers challenging the bans why his court should not feel bound by Baker, since the Supreme Court has never found reason to overturn it.” Slate, however, reports that Justice Sutton then “walk(ed) back his statement, musing that “the legal reasoning in other cases”—Romer, Lawrence, and especially Windsor—were “totally inconsistent with Baker.” ” According to Slate, Sutton is known as a swing vote, as he was appointed by George W. Bush and served as law clerk to Supreme Court Justice Antonin Scalia, but recently upheld the Affordable Care Act when it was challenged in the 6th Circuit.

A decision to uphold the states’ gay marriage bans couched in the precedent of Baker would avoid dealing with difficult constitutional questions surrounding these issues, and would almost certainly send the issue swiftly to the Supreme Court for decision.