Guest Opinion: High court may soon consider gay marriage bans

May 20, 2014 

As of May 20, 13 federal judges have struck down state laws banning gay marriage as unconstitutional. They make the case against these state laws look easy. But in 1972 the U.S. Supreme Court rejected a constitutional challenge to a Minnesota law banning gay marriage. In fact, the court considered the Minnesota challenge such a loser that it did not even allow the case to be fully briefed or argued before rejecting it.

The current string of rulings striking down gay marriage bans raises an important question about the U.S. Supreme Court's authority.

The Minnesota case arose when Richard Baker and James McConnell applied for a marriage license. Minnesota turned them down because they were of the same sex. They sued, arguing that the Minnesota law banning gay marriage violated the U.S. Constitution. They relied on precisely the same constitutional provisions that 11 federal judges have cited in striking down state laws banning gay marriage. But in 1971 the Minnesota Supreme Court rejected Baker and McConnell's constitutional challenge. The two men appealed to the U.S. Supreme Court in a case known today as Baker.

The Supreme Court rejected the Baker appeal in a one-sentence opinion. The court said that the appeal did not raise "a substantial federal question." In other words, the constitutional challenge to the Minnesota ban was too insubstantial to justify the court's full attention. The court disposed of the case using what is called in legal circles a "summary dismissal" (and in popular circles "the old heave-ho"). The court denied the appeal the full-dress treatment — which includes lengthy briefing and oral argument — given to cases that do present a "substantial" federal question.

Thus, in 1972 the U.S. Supreme Court thought the constitutionality of state laws banning gay marriage was a no-brainer. How have 11 federal court judges come to the opposite conclusion with apparent ease?

They have pointed out that times have changed. Since 1972, the court has struck down several laws that discriminate based on sex. In 1996, the Court struck down a law that was designed to make it hard for gay rights advocates to enact anti-discrimination ordinances. And just last year the court struck down a federal law, the Defense of Marriage Act, that tried to impose a national definition of marriage as the union of a man and woman.

"The times are a-changing" rationale may not wash with the U.S. Supreme Court, though. First, none of the court's decisions since 1972 has addressed the precise issue of the constitutionality of state laws banning gay marriage. Second, the 1972 Baker decision did address that precise issue. True, the Baker decision was a summary dismissal. But that doesn't mean lower federal courts can ignore it.

On the contrary, the Supreme Court has said that its summary dismissals prevent the lower federal courts from later "coming to opposite conclusions on the precise issues" presented and necessarily decided in the case that got summarily dismissed. The summary dismissal in Baker seemed to decide the precise issue that has confronted the current 13 federal judges.

The Supreme Court requires lower federal courts to obey its summary dismissals even if those dismissals rested on reasoning that the court itself would no longer follow. This ensures that the court alone gets to decide whether its summary dismissals should be ignored as obsolete. If the court believes that 13 federal judges have played fast and loose with the court's summary dismissal in Baker, that belief may prompt the court, sooner rather than later, to give full-dress treatment to the constitutionality of laws banning gay marriage.

Richard Seamon is a professor of law at the University of Idaho College of Law.

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