Linda Greenhouse has an excellent critique of Jeffrey Sutton’s outlier opinion upholding bans on same-sex marriage. Jonathan Adler disagrees:
Adler can’t capture this in 140 characters or less, of course, but Greenhouse does discuss this point extensively. Adler’s argument is that Baker v. Nelson, an 11-word order dismissing a mandatory appeal to a decision confining marriage in Minnesota to opposite-sex couples, remains binding precedent. Greenhouse recounts the arguments made and joined by more than 10 federal judges — including Richard Posner — explaining why Baker is no longer authoritative. Even if one disagrees with Antonin Scalia that Romer, Lawrence, and Windsor imply a right to same-sex marriage, they certainly make clear that at a minimum challenges to the constitutionality of same-sex marriage bans now present a “substantial federal question.” It is perfectly appropriate for circuit courts to take these doctrinal developments into account.
Just as it does on the merits, Daughtrey’s dissent has by far the better of the argument on this question:
If ever there was a legal “dead letter” emanating from the Supreme Court, Baker v. Nelson is a prime candidate. It lacks only a stake through its heart. Nevertheless, the majority posits that we are bound by the Court’s aging one-line order denying review of an appeal from the Minnesota Supreme Court “for want of a substantial federal question.” As the majority notes, the question concerned the state’s refusal to issue a marriage license to a same-sex couple, but the decision came at a point in time when sodomy was legal in only one state in the country, Illinois, which had repealed its anti-sodomy statute in 1962. The Minnesota statute criminalizing same-sex intimate relations was not struck down until 2001, almost 30 years after Baker was announced. The Minnesota Supreme Court’s denial of relief to a same-sex couple in 1971 and the United States Supreme Court’s conclusion that there was no substantial federal question involved in the appeal thus is unsurprising. As the majority notes—not facetiously, one hopes—“that was then; this is now.”
At the same time, the majority argues that we are bound by the eleven words in the order, despite the Supreme Court silence on the matter in the 42 years since it was issued. There was no recognition of Baker in Romer v. Evans, nor in Lawrence v. Texas, and not in Windsor, despite the fact that the dissenting judge in the Second Circuit’s opinion in Windsor made the same argument that the majority makes in this case. And although the argument was vigorously pressed by the DOMA proponents in their Supreme Court brief in Windsor, neither Justice Kennedy in his opinion for the court nor any of the four dissenting judges in their three separate opinions mentioned Baker. If this string of cases—Romer, Lawrence, Windsor, Kitchen, Bostic, and Baskin—does not represent the Court’s overruling of Baker sub silentio, it certainly creates the “doctrinal development” that frees the lower courts from the strictures of a summary disposition by the Supreme Court. See Hicks v. Miranda.
This is clearly correct. The point about Windsor is in and of itself pretty much dispositive. It’s hard to argue that Baker remains binding precedent when neither the majority nor dissenting opinions in a major Supreme Court case decided last year consider it even worthy of mention. Adler’s response is that Baker wasn’t applicable because it was a federal, not a state, case. But Kennedy’s rationale clearly remains applicable to both:
The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does,the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
In the first paragraph, Kennedy cites Bolling v. Sharpe, which as many of you know held that segregation in D.C. schools was unconstitutional although the 14th Amendment applies only to state governments. The “reverse incorporation” theory of Bolling held that the federal government was bound by the equal protection clause through the 5th Amendment. If the disabilities imposed by gays and lesbians by DOMA violate the “equal protection component” of the due process clause of the 5th Amendment, how can it be true that the disabilities imposed on gays and lesbians by state bans on same-sex marriage do not even raise a “substantial federal question” under the equal protection clause of the 14th? It can’t. And even if you want to claim that somehow the “equal protection component” of the due process clause is meaningfully different in content than the equal protection clause, Romer and Lawrence were state cases and they didn’t mention Baker either, although the former was an equal protection case and in the latter a concurring opinion (extensively critiqued by the Scalia dissent) rested on equal protection grounds.
Sutton, in other words, is an outlier for a reason. He’s being disingenuous when he suggests that he’s bound by Baker, which has clearly been superseded by multiple subsequent opinions. Which, presumably, is one reason Sutton didn’t just rely on Baker and refuse to consider the merits but devotes the bulk of his opinion to making his own (shallow and exceedingly unpersuasive) arguments on the merits.