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.
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,[note 1] 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 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.
In recent years, most judges faced with claims like those in Baker have concluded that subsequent developments render Baker no longer authoritative. During the 2013 oral argument in Hollingsworth v. Perry, U.S. Supreme Court Associate Justice Ruth Bader Ginsburg summarized her view of Baker: "The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don't think we can extract much in Baker v. Nelson."
Following the Windsor decision, no U.S. Court of Appeals held that Baker controlled in cases challenging a ban on same-sex marriage, until November 6, 2014, when the Sixth Circuit Court of Appeals ruled that Baker precluded it from considering several such cases from Kentucky, Michigan, Ohio, and Tennessee. Judge Jeffrey Sutton wrote in DeBoer v. Snyder that:
It matters not whether we think the decision [in Baker] was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions.... The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.
He argued that Windsor in no way contradicted Baker: "Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it." The precedential value of Baker is the subject of ongoing disputes in some other circuits. In the First Circuit, an October 2014 district court decision rejected a similar challenge to Puerto Rico's ban on same-sex marriage and said the First Circuit had "expressly acknowledged–a mere two years ago–that Baker remains binding precedent" in Massachusetts v. United States Department of Health and Human Services. There have also been dissenting opinions from the U.S. Courts of Appeal for the Fourth and Tenth Circuits in 2014 that found Baker controlling.
While U.S. Courts of Appeal may set precedent within their region, only the U.S. Supreme Court may overrule its own decisions. The question of Baker's value as precedent will remain until the U.S. Supreme Court chooses to address the question directly.
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.
- The U.S. Supreme Court was required to accept the appeal as a matter of right, a practice that the Supreme Court Case Selections Act ended in 1988.
- 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).
- '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).
- Schneier at 957 (the Court has "limited the precedential value of summary dispositions to cases with legally indistinguishable facts."); Stern at § 4.30.
- 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.
- Schneier at 961 ("which of the issues presented to the Court were necessarily decided by the summary disposition...").
- Schneier at 961 ("determine whether there have been doctrinal developments that supersede the summarily adjudicated case").
- Barnes, Robert (August 17, 2014). "Supreme Court: Was gay marriage settled in 1972 case?". Washington Post. Retrieved October 3, 2014.
- Carpenter, Dale (October 7, 2014). "Symposium: Judge Sutton's trilemma". SCOTUSblog. Retrieved October 18, 2014.
- Geidner, Chris (November 6, 2014). "Federal Appeals Court Upholds Four States' Same-Sex Marriage Bans". BuzzFeed News. Retrieved November 6, 2014.
- "DeBoer v. Snyder, November 6, 2014". Sixth Circuit Court of Appeals. Retrieved November 7, 2014.
- "Opinion and Order". U.S. District Court for Puerto Rico. Retrieved October 21, 2014.
- Denniston, Lyle (October 21, 2014). "Puerto Rico ban on same-sex marriage upheld". SCOTUSblog. Retrieved October 22, 2014.
- Coyle, Marcia (September 4, 2014). "Seventh Circuit Strikes Down Same-Sex Marriage Bans". The National Law Journal.
- "Minn. Gay Couple In '71 Marriage Case Still United". ABCNews. December 10, 2012. Retrieved December 10, 2012.