Baker v. Nelson
Richard John Baker v. Gerald R. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) is a case in which the Minnesota Supreme Court ruled that a state law limiting marriage to persons of the opposite sex did not violate the U.S. Constitution. Baker appealed, and on October 10, 1972, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." Because the case came to the Supreme Court through mandatory appellate review (not certiorari), the dismissal constituted a decision on the merits and established Baker v. Nelson as precedent, though the extent of its precedential effect has been subject to debate. In May 2013, Minnesota legalized same-sex marriage and it took effect on August 1, 2013.
- 1 Facts and trial
- 2 Appeal to the Minnesota Supreme Court
- 3 Appeal to the U.S. Supreme Court
- 4 Application of the Baker precedent
- 4.1 Baker in federal courts
- 4.1.1 Citizens for Equal Protection v. Bruning, U.S. Court of Appeals, 8th Circuit (2006)
- 4.1.2 Wilson v. Ake, U.S. District Court (2005)
- 4.1.3 In re Kandu, U.S. Bankruptcy Court (2004)
- 4.1.4 Perry v. Schwarzenegger, United States District Court for the Northern District of California (2010)
- 4.1.5 Defense of Marriage Act Cases before the U.S. Court of Appeals, First Circuit (2012)
- 4.1.6 United States District Court for the District of Hawaii (2012)
- 4.1.7 United States v. Windsor, U.S. Court of Appeals, Second Circuit (2012); United States Supreme Court (2013)
- 4.1.8 Sevick v. Sandoval, United States District Court for the District of Nevada (2012)
- 4.1.9 Whitewood v. Corbett, United States District Court for the District of Pennsylvania (2013)
- 4.2 Baker in state courts
- 4.1 Baker in federal courts
- 5 Plaintiffs
- 6 See also
- 7 References
- 8 External links
Facts and trial
On May 18, 1970, two University of Minnesota gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license in Minneapolis. The clerk of the Hennepin County District Court, Gerald Nelson, denied the request on the sole ground that the two were of the same sex. The couple filed suit in district court to force Nelson to issue the license.
The couple first contended that Minnesota's marriage statutes contained no explicit requirement that applicants be of different sexes. If the court were to construe the statutes to require different-sex couples, however, Baker claimed such a reading would violate several provisions of the U.S. Constitution:
- First Amendment (freedom of speech and of association),
- Eighth Amendment (cruel and unusual punishment),
- Ninth Amendment (unenumerated right to privacy), and
- Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause).
The trial court dismissed the couple's claims and ordered the clerk not to issue the license.
Appeal to the Minnesota Supreme Court
The couple appealed the district court's decision to the Minnesota Supreme Court. In a brief opinion issued on October 15, 1971, the state's highest court affirmed the trial court's dismissal. Based on the common usage of the term "marriage" and gender-specific references elsewhere in the same chapter, the Court held that the statutes prohibited marriage between persons of the same sex. This restriction, the Court reasoned, did not offend the Due Process Clause because procreation and child rearing were central to the constitutional protection given to marriage.
With respect to the claim of an equal-protection violation, the Court found that childless marriages presented no more than a theoretical imperfection in the state's rationale for limiting marriage to different-sex couples. It found the plaintiffs' reliance on the U.S. Supreme Court's recent decision in Loving v. Virginia, finding an anti-miscegenation law unconsititional, failed to provide a parallel: "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."
The Court acknowledged that Justice Goldberg's concurrence in Griswold v. Connecticut, which argued that criminalizing the possession of contraceptives violated the right to marital privacy, found support for marital privacy partly in the Ninth Amendment, but the Court distinguished Griswold and found no authority for the Ninth Amendment being binding on the states. The Court dismissed the plaintiffs' claims under the First and Eighth Amendments without discussion.
Appeal to the U.S. Supreme Court
Baker and McConnell appealed the Minnesota court's decision to the U.S. Supreme Court. There, they claimed the Minnesota marriage statutes implicated three rights: they abridged their fundamental right to marry under the Due Process Clause of the Fourteenth Amendment; discriminated based on gender, contrary to the Equal Protection Clause of the Fourteenth Amendment; and deprived them of privacy rights flowing from the Ninth Amendment to the United States Constitution. On October 10, 1972, the U.S. Supreme Court issued a one-sentence order stating "The appeal is dismissed for want of a substantial federal question."
In most cases presented to the U.S. Supreme Court, the Court's refusal to hear the case is not an endorsement of the decision below. However, since this case came to the Court through mandatory appellate review, the summary dismissal is a decision on the merits of the case. As binding precedent, the Baker decision prevents lower courts from coming to a contrary conclusion when presented with the precise issue the Court necessarily adjudicated in dismissing the case.
Application of the Baker precedent
When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions. The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:
- The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.
- The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court's decision.
- Of the issues presented, only those necessarily decided by the Court in dismissing the case control.
- Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.
Baker in federal courts
In applying the guidelines for summary dispositions, federal judges have come to differing conclusions on where and how Baker controls.
Citizens for Equal Protection v. Bruning, U.S. Court of Appeals, 8th Circuit (2006)
In Citizens for Equal Protection v. Bruning the U.S. Court of Appeals for the Eighth Circuit rejected claims by Nebraska citizen organizations that the state constitutional amendment banning same-sex marriage offended the U.S. Constitution's Equal Protection Clause, among other provisions. While Baker did not appear in the court's Fourteenth Amendment analysis, the court's opinion did note in its concluding passage:
- Indeed, in Baker v. Nelson, when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." There is good reason for this restraint.
(emphasis added in the Bruning opinion, citations omitted.)
Wilson v. Ake, U.S. District Court (2005)
Two Florida women who married in Massachusetts claimed that Florida's marriage statutes and the federal Defense of Marriage Act (DOMA) violated the due process and equal protection guarantees of the Fourteenth Amendment (and implicitly the Fifth Amendment), among other claims. The judge dismissed the claims against the U.S. Attorney General in part because Baker controlled: "The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today."
In re Kandu, U.S. Bankruptcy Court (2004)
Lee and Ann Kandu, Washington residents, were married in British Columbia. They jointly filed for bankruptcy protection. Kandu claimed, among other things, that the portion of the federal Defense of Marriage Act (DOMA) that precluded the bankruptcy court from allowing a joint proceeding violated due-process and equal-protection principles under the Fifth Amendment. The court concluded that Baker did not control. Among the distinguishing features the court noted were the dissimilarity between state laws governing marriage licenses in Baker and the federal DOMA and bankruptcy code in this case as well as the possibility that the Supreme Court's decision in Lawrence v. Texas (striking down Texas' sodomy statute) marked a shift in the Court's "analysis of same-sex conduct."
Perry v. Schwarzenegger, United States District Court for the Northern District of California (2010)
Citing Plaintiffs' argument in court filings that intervening Supreme Court cases relating to marriage and to LGBT rights distinguished Perry v. Schwarzenegger from Baker, District Judge Vaughn Walker denied Defendant-Intervenors' Motion for Summary Judgment. Later, in his ruling striking down Proposition 8, a state constitutional amendment barring same-sex marriage, Judge Walker made no mention of Baker, referring only to his previous Order.
Defense of Marriage Act Cases before the U.S. Court of Appeals, First Circuit (2012)
In Massachusetts v. United States Department of Health and Human Services and Gill v. Office of Personnel Management the court struck down the challenged portion of the Defense of Marriage Act. The court first noted that Baker, "is precedent binding on us unless repudiated by subsequent Supreme Court precedent." The court also acknowledged Lawrence and Romer, but pointed out that "neither mandates that the Constitution requires states to permit same-sex marriages." Finally, the court noted that Baker "limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage".
United States District Court for the District of Hawaii (2012)
Senior District Judge Alan C. Kay included a lengthy discussion of Baker in his opinion upholding Hawaii's Defense of Marriage Act. Specifically, Kay rejected the contention that subsequent doctrinal developments since Baker undermined it to the point it was no longer binding precedent. He held that Baker bound the court on both the Due Process and Equal Protection claims asserted by the plaintiffs.
United States v. Windsor, U.S. Court of Appeals, Second Circuit (2012); United States Supreme Court (2013)
Chief Judge Dennis Jacobs wrote for the United States Court of Appeals for the Second Circuit in Windsor v. United States that Baker did not control his review of equal protection arguments against DOMA because "manifold changes to the Supreme Court's equal protection jurisprudence" had occurred in the intervening 40 years and because at issue in Baker was same-sex marriage within a state while Windsor was challenging a federal statute. On June 26, 2013, the United States Supreme Court upheld the Second Circuit, although the majority opinion made no mention of Baker.
Sevick v. Sandoval, United States District Court for the District of Nevada (2012)
Chief Judge Robert C. Jones held that Baker controlled the plaintiffs arguments with respect to their equal protection clause claims and so concluded that there was no constitutional case to be made for same-sex marriage rights. Jones went on to conduct a full analysis of the case, anticipating that an appellate court might disagree with his ruling on the relevance of Baker.
Whitewood v. Corbett, United States District Court for the District of Pennsylvania (2013)
U.S. District Judge John E. Jones III on November 15, 2013, ruling in the case of Whitewood v. Corbett held that Baker did not require him to find that Pennsylvania's denial of marriage rights to same-sex couples was not subject to federal jurisdiction because "The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972".
Baker in state courts
In state courts, the relevance of a precedent like Baker partly depends on what claims the litigants make. If the litigants claim protection of the U.S Constitution, a U.S. Supreme Court precedent may control the outcome of those claims. If the claims arise under state constitutional provisions, federal precedents need not control. There are some state courts, however, that treat provisions of their constitution in the same way as the federal courts treat the analogous portion of the U.S. Constitution. In these circumstances, precedents like Baker may control state constitutional analysis.
In state courts, judges also come to somewhat differing conclusions as to Baker's reach.
Morrison v. Sandler, Indiana Court of Appeals (2005)
The Indiana Court of Appeals upheld the dismissal of a case brought by several same-sex couples who challenged Indiana's marriage statutes. On appeal, the couples claimed that the statutes violated several provisions of the Indiana Constitution, principally the Equal Privileges and Immunities Clause (Article 1 § 23). The majority opinion (Barnes, J.) concluded its description of Baker with:
- Thus, the Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. In light of this precedent, the Plaintiffs have not made a Fourteenth Amendment argument in this case.
Hernandez v. Robles, New York Court of Appeals (2004)
The New York Court of Appeals (the state's highest court) rejected claims by same-sex couples that the state's marriage laws were offensive to the state constitution's Due Process and Equal Protection clauses. New York courts treat the state's Equal Protection Clause interchangeably with its federal counterpart.
In Re Marriage of J.B. and H.B., Texas 5th Circuit Court of Appeal (2010)
In In Re Marriage of J.B. and H.B., 326 S.W.3d 654 (2010), the Texas 5th Circuit considered a challenge to Texas's Proposition 2. While the Court observed that "it reaffirm[ed] the states' preeminent role in the area of family law" and accorded "Baker appropriate weight in [its] analysis of the equal-protection issue", it expanded the instant case before it from Baker. The court observed that "the Baker appellants [had] argued that the Constitution compelled Minnesota to grant them a marriage license and [to] treat them as a married couple from then on", but that the appellee in this case had complained "Texas law relegates him to a declaration of voidness, when a party to an opposite-sex marriage in otherwise similar circumstances would be entitled to a divorce."
Benson v. Alverson, Hennepin County, Minnesota, District Court (2011)
In Benson v. Alverson, Judge Mary DuFresne rejected state constitutional challenges against Minnesota's marriage laws by three same-sex couples partly on the basis that Baker is binding precedent on state courts with respect to the due process and equal protection claims, stating that "[s]ame-sex marriage will not exist in this State unless and until the Minnesota Supreme Court overrules its own decision in Baker, or the State Legislature repeals the state DOMA." DuFresne also rejected the argument that Baker was dispositive on the religious freedom claim. The Minnesota State Court of Appeals reversed her decision on January 24, 2012, finding she erred in using Baker to dismiss the case and allowing the case to go to trial.
As of December 2012, the original plaintiffs in Baker v. Nelson, Jack Baker and Michael McConnell, were living as a couple in retirement in Minneapolis.
- 409 U.S. 810 (1972)
- Project, Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156, 1274 (1980) (discussing Baker's posture as precedent); see, e.g. Pamela R. Winnick, Comment, The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda, 76 Colum. L. Rev. 508, 511 (1976) ("a dismissal by the Supreme Court is an adjudication on the merits ... a lower federal court must consider itself bound by the dismissal when a similar challenge comes before it")
- Coyle, Marcia. The first case, 40 years on, The National Law Journal, August 23, 2010
- Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3-4 (statement of the case); Court Won't Let Men Wed, N.Y. Times, Jan. 10, 1971 at 65.
- Appellant's Jurisdictional Statement, Baker v. Nelson at 6 (how the federal questions were raised); Baker v. Nelson, 191 N.W.2d 185, 185-86 (Minn. 1971); The Legality of Homosexual Marriage, 82 Yale L.J. 573, 573-74 (1973).
- Baker, 191 N.W.2d at 185.
- Baker, 191 N.W.2d at 185-86; Rhonda R. Rivera, Our Straight-Laced Judges, 30 Hastings L.J. 799, 874-75 (1979).
- Baker, 191 N.W.2d at 186-87; Rivera at 875; The Legality of Homosexual Marriage at 579 n.27.
- Baker, 191 N.W.2d at 187; Rivera at 875.
- Baker, 191 N.W.2d at 186-87; The Legality of Homosexual Marriage at 573-74 n.3.
- Baker, 191 N.W.2d at 186 n.2.
- Appellant's Jurisdictional Statement, Baker v. Nelson, Supreme Court docket no. 71-1027, at 3, available at DOMAwatch.org (accessed Oct. 28, 2009) (questions presented).
- Baker v. Nelson, 409 810 (U.S. 1972) (“The appeal is dismissed for want of a substantial federal question.”).
- See, e.g. Briefing Glossary, Office of the Solicitor General website (see "Appellate jurisdiction" and "Certiorari"; accessed Oct. 25, 2009).
- Project, Developments in the Law: The Constitution and the Family, 93 Harv. L. Rev. 1156, 1274 (1980) (discussing Baker's posture as precedent); see, e.g. Pamela R. Winnick, Comment, The Precedential Weight of a Dismissal by the Supreme Court for Want of a Substantial Federal Question: Some Implications of Hicks v. Miranda, 76 Colum. L. Rev. 508, 511 (1976) ("a dismissal by the Supreme Court is an adjudication on the merits... a lower federal court must consider itself bound by the dismissal when a similar challenge comes before it").
- See, e.g. Mandel v. Bradley, 432 U.S. 173, 176 (1977) ("[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.... They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions."); see generally Note, The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley, 61 Va. L. Rev. 117, 118 (1978).
- E.g. In re Kandu, 315 B.R. 123, 137 (Bkrtcy. W.D. Wash 2004) (determining whether Baker controls "is anything but a clear and certain task."); Colorado Springs Amusement Ltd. v. Rizzo, 428 U.S. 913, 919 (1976) (Brennan, J., dissenting from denial of cert.) ("When presented with the contention that our unexplained dispositions are conclusively binding, puzzled state and lower court judges are left to guess as to the meaning and scope of our unexplained dispositions." [citations omitted]); Robert L. Stern, et al., Supreme Court Practice 296 (6th ed. 1986) ("the Court has become increasingly concerned that these summary dispositions on the merits are uncertain guides to the lower courts bound to follow them and not infrequently create more confusion than certainty in the development of the law").
- E.g. William J. Schneier, Note, The Do's and Don'ts of Determining the Precedential Value of Supreme Court Summary Dispositions, 51 Brook. L. R. 945 (1985) (surveying the application of summary judgments before and after Hicks v. Miranda, 422 U.S. 332 ); Robert L. Stern, et al., Supreme Court Practice, 250 (6th ed. 1986) (setting out four criteria with which a lower court could proceed with confidence, largely quoted from Mandel v. Bradley, 423 U.S. 173, 176 ).
- E.g. Mandel v. Bradley, 423 U.S. at 177 ("The precedential significance of the summary action in Salera, however, is to be assessed in the light of all of the facts in that case;"); Schneier at 957 (the Court has "limited the precedential value of summary dispositions to cases with legally indistinguishable facts."); Stern at § 4.30.
- E.g. Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 182-83 (1979) ("A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." [citations omitted]); Mandel v. Bradley, 432 U.S. at 180 ("before deciding a case on the authority of a summary disposition by this Court in another case, [lower courts] must (a) examine the jurisdictional statement in the earlier case to be certain that the constitutional questions presented were the same..."); Schneier at 960 ("a court must... examine the jurisdictional statement to determine which issues were directly presented to the Supreme Court..."); Stern at § 4.30.
- E.g. Anderson v. Celebrezze, 460 U.S. 780, 785 n5 (1983) (Rehnquist, J., dissenting) ("the precedential effect of a summary affirmance extends no further than 'the precise issues presented and necessarily decided by those actions.' A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment."); Schneier at 961 ("which of the issues presented to the Court were necessarily decided by the summary disposition...").
- E.g. Hicks v. Miranda, 422 U.S. at 344 ("'if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.'" quoting Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n.3 [2nd Cir. 1967]); Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 173, n.33 (3d Cir. 2002) (cert. denied 539 U.S. 942 ); Schneier at 961 ("determine whether there have been doctrinal developments that supersede the summarily adjudicated case"); but, c.f. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (holding that lower courts should respect [full] opinions of the Court that are directly on point even when later opinions cast doubt on their validity).
- Citizens for Equal Protection v. Bruning, 455 F.3d 859, 863 (8th Cir. 2006) (other claims were without merit bill of attainder [art. 1 sect. 10] and the lower court, sua sponte, found violations of the First Amendment).
- Citizens for Equal Protection at 870-71.
- The Fourteenth Amendment binds states, but the Fifth Amendment governs federal actions. The couple raised claims under only the former provision, but the court construed the DOMA claims under the Fifth Amendment. Wilson v. Akins, 354 F.Supp.2d 1298, 1305 n.9, 1307 n.11 (M.D. Fla. 2005).
- Wilson v. Akins, 354 F.Supp.2d at 1305.
- In re Kandu, 315 B.R. 123, 130-31 (Bkrtcy. W.D. Wash 2004).
- In re Kandu, 315 B.R. at 136-37 ("Given the enumerated statutory differences between Baker and DOMA, subsequent Congressional history related to DOMA, the limited scope of precedential value of summary affirmations and dismissals, and the possible impact of recent Supreme Court decisions, particularly as articulated in Lawrence, this Court concludes that Baker is not binding precedent on the issues presented by the Debtors."); William C. Duncan, Avoidance Strategy: Same-Sex Marriage Litigation and the Federal Courts, 29 Campbell L. Rev. 29, 34 (2006).
- Denniston, Lyle. DOMA ban on gay marriage falls, SCOTUSblog. May 31, 2012.
- Jackson v. Abercrombie 1:11-cv-00734-ACK-KSC (D. Haw. 2012).
- Johnson, Chris (18 October 2012). "Second Circuit latest to strike down DOMA". Washington Blade. Retrieved 18 October 2012.
- United States v. Windsor decided June 26, 2013
- Geidner, Chris (November 29, 2012). "Federal Judge Rules Nevada Can Ban Same-Sex Couples From Marriage". BuzzFeed Politics. Retrieved November 30, 2012.
- Warden, Amy (November 17, 2013). "Judge clears way for trial on Pa. gay marriage ban". Philadelphia Inquirer. Retrieved November 18, 2013.
- E.g., William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491-93 (1977); G. Alan Tarr, Understanding State Constitutions p.167 (1998).
- E.g., Maltz, Earl M. (1988). "Lockstep Analysis and the Concept of Federalism". Annals of American Academy of Political and Social Sciences 496: 98 [pp. 99–102]. JSTOR 1046322.
- E.g. 1 Jennifer Friesen, State Constitutional Law § 3.01 (4th ed. 2006); see also, e.g. Timothy P. O'Neill, "Stop Me Before I get Reversed Again", 36 Loyola University Chicago Law Journal 893, 897 (2005).
- Morrison v. Sandler 821 N.E. 2d 15
- Hernandez v. Robles, 855 N.E.2d 356 (2006).
- Under 21 v City of New York, 65 N.Y.2d 344, 360 n.6 (1985) ("We have held that the State constitutional equal protection clause (NY Const, art I, §11) is no broader in coverage than the Federal provision... Accordingly, we need only analyze the equal protection issue under the framework of the 14th Amendment.")
- Hernandez, 855 N.E.2d at 362.
- Hernandez, 855 N.E.2d at 372 n.4.
- Benson v. Alverson
- Judge dismisses challenge to gay marriage barriers Minnesota Star Tribune March 8, 2011 Accessed July 4, 2011
- Duchschere, Kevin (January 23, 2012). "Appeals court: Minnesota gay marriage case will get trial". Star Tribune. Retrieved December 10, 2012.
- "Minn. Gay Couple In '71 Marriage Case Still United". NPR. December 10, 2012. Retrieved December 10, 2012.
- Text of Baker v. Nelson from Minnesota Supreme Court (1971)
- Text of Baker v. Nelson from U.S. Supreme Court (1972)
- Baker and McConnell's jurisdictional statement filing with the U.S. Supreme Court
- Text of Wilson v. Ake
- Text of Citizens For Equal Protection v Bruning
- Text of Anderson v King County
- Text of Morrison v Sadler