Earlier today I wrote a piece concerning the Federal Court ruling that overturned Alabama's bans on same-sex marriages. Though I think that individual freedom demands the right to marry whichever consenting adult agrees to marry you back, I haven't actually viewed the wave of court rulings with delight. Why not? To put it simply, I'm never happy when a judge decides he sees a right in the Constitution that has never before been recognized. The Supreme Court of the United States has never set the precedent to recognize same-sex marriages, and I generally find it presumptuous when a court takes it upon itself to find a right that SCOTUS has missed.
Note that I haven't spoken out AGAINST those rulings... again, I support the end goal, and I haven't been able to point to anything WRONG... this is just my cynical nature expressing itself.
Or so I thought. A little while ago I unearthed Supreme Court precedent on same-sex marriages... and it is in the wrong direction. Allow me to point out a case from 1971, Baker v Nelson.
Summary:
When a gay couple was refused a marriage license in Minneapolis because state law limited marriage to "persons of the opposite sex", they took it to court. They appealed when the judge agreed with the clerk who had denied the license, and in October of 1971 the state Supreme Court ruled that marriage “is a union of man and woman,” in an institution “as old as the book of Genesis.” The case was set for automatic appellate review, but SCOTUS refused to hear the case: “Appeal from Sup. Ct. Minn. dismissed for want of a substantial federal question.” This left the State Supreme Court ruling in place, and told states that marriage was a matter for their regulation.
So that's the controlling legal case to date... in 1971 SCOTUS ruled that marriage is a state matter, and that the Federal government has no control over it.
Many say that the case is still controlling, while others say that it has been overtaken by subsequent events and is no longer valid.
No matter how you look at it, though, it is important to realize exactly what the SCOTUS action in Baker v Nelson actually said. SCOTUS did NOT say same-sex couples had no right to marry, they ruled that whether such marriages were recognized was up to the states to decide. The phrase "dismissed for want of a substantial federal question" means exactly that, and nothing more.
If you'l recall, back in 2012 SCOTUS heard another case concerning gay marriages, United States v Windsor. In that case, the Defense of Marriage Act was challenged, in that it only recognized traditional marriages in spite of the fact that some states recognized same-sex marriages. SCOTUS overturned Section 3 of DOMA, saying that it violated the due process clause of the US Constitution. Writing the majority opinion, Justice Kennedy said:
I want you to read that very carefully and note what the basis was for the decision. Essentially, Kennedy said that DOMA was invalid because it tried to override a state-decision of marriage. In short, Kennedy said that a couple is married if A STATE SAYS THEY ARE! Notice that this decision doesn't contradict Baker... if anything, it supports it by using the exact same logic.
Baker upheld the state law banning same-sex marriages because the Federal government can't override a state definition of marriage. United States v Windsor overturned DOMA for the exact same reason, i.e. the Federal government cannot override a state's definition of marriage.
In April of this year, SCOTUS will hear arguments concerning four different cases (Bourke v. Beshear, DeBoer v. Snyder, Obergefell v. Hodges, and Tanco v. Haslam) where lower courts ruled on some aspect of the same-sex marriage debate. They did, however, limit the case (which will probably become known by the first of the lower court cases referenced, Obergefell v. Hodges) to two questions:
The following is my intellectual analysis of how the court might rule if they follow existing Supreme Court precedent and the reasoning that was expressed in Windsor, the most recent case concerning same-sex marriage. This analysis does NOT express my own opinion of how life should be in these United States, nor in how marriage should be viewed. I am also not attempting to predict how SCOTUS WILL rule... anyone who claims they can reliably predict that is either selling something or smoking something. It is quite possible that SCOTUS might set a new precedent and discard the old Baker standard from 1971... it wouldn't be the first time that the Court broke with precedent.
So, for what it's worth...
For Question #1, the court answered it way back in 1971. The lower courts that have overturned bans on same-sex marriage have done so using aspects of the US Constitution, despite the fact that SCOTUS ruled in 1971 that there was no "substantial federal question" involved. If SCOTUS follows the 1971 precedent and the logic embodied therein, they could rule that states are not required by the US Constitution to license a marriage between two people of the same sex.
For Question #2, the court answered that question in 2012 when it overturned Section 3 of DOMA. Given that the Federal government can't overrule a marriage recognized by a state, and given that states are required to give full faith and credit to the actions of other states, then a state cannot decline to recognize a marriage that was performed in a state that recognizes same-sex marriages. If SCOTUS follows the 2012 precedent and the logic embodied therein, they would rule that states are required by the US Constitution to recognize same-sex marriages legally performed in other states.
Could I be wrong? Oh, heck, yes. As I said, I'm not predicting how SCOTUS will rule, I'm only trying to look at how precedent stands at the moment. Precedent seems to point the direction I outlined above, and we've even seen a recent display of the logic I rely on for this opinion piece.
It would be easy to say that SCOTUS should make the recognition of same-sex marriages mandatory for all states, and while one part of me likes that, a larger part is more wary. Do you recall the old saying, the ends do not justify the means? It is possible for SCOTUS to issue a ruling that accomplishes the goal, but produces unforeseen consequences that aren't like anything we might expect. Every legal decision impacts FAR more than the question directly at hand, because the same logic used to arrive at the decision can be applied to different circumstances. Eventually, SOME enterprising young lawyer could provide us all with an unpleasant surprise that the Courts are forced to sanction.
If the Court does rule that states must issue same-sex marriage licenses, then I will be reading their logic closely to see if I approve of their logic. No matter how they rule, however, you can be sure I'll be commenting on it at some point.
![]()
![]()
![]()
![]()
![]()
![]()
Note that I haven't spoken out AGAINST those rulings... again, I support the end goal, and I haven't been able to point to anything WRONG... this is just my cynical nature expressing itself.
Or so I thought. A little while ago I unearthed Supreme Court precedent on same-sex marriages... and it is in the wrong direction. Allow me to point out a case from 1971, Baker v Nelson.
Summary:
When a gay couple was refused a marriage license in Minneapolis because state law limited marriage to "persons of the opposite sex", they took it to court. They appealed when the judge agreed with the clerk who had denied the license, and in October of 1971 the state Supreme Court ruled that marriage “is a union of man and woman,” in an institution “as old as the book of Genesis.” The case was set for automatic appellate review, but SCOTUS refused to hear the case: “Appeal from Sup. Ct. Minn. dismissed for want of a substantial federal question.” This left the State Supreme Court ruling in place, and told states that marriage was a matter for their regulation.
So that's the controlling legal case to date... in 1971 SCOTUS ruled that marriage is a state matter, and that the Federal government has no control over it.
Many say that the case is still controlling, while others say that it has been overtaken by subsequent events and is no longer valid.
No matter how you look at it, though, it is important to realize exactly what the SCOTUS action in Baker v Nelson actually said. SCOTUS did NOT say same-sex couples had no right to marry, they ruled that whether such marriages were recognized was up to the states to decide. The phrase "dismissed for want of a substantial federal question" means exactly that, and nothing more.
If you'l recall, back in 2012 SCOTUS heard another case concerning gay marriages, United States v Windsor. In that case, the Defense of Marriage Act was challenged, in that it only recognized traditional marriages in spite of the fact that some states recognized same-sex marriages. SCOTUS overturned Section 3 of DOMA, saying that it violated the due process clause of the US Constitution. Writing the majority opinion, Justice Kennedy said:
"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."
I want you to read that very carefully and note what the basis was for the decision. Essentially, Kennedy said that DOMA was invalid because it tried to override a state-decision of marriage. In short, Kennedy said that a couple is married if A STATE SAYS THEY ARE! Notice that this decision doesn't contradict Baker... if anything, it supports it by using the exact same logic.
Baker upheld the state law banning same-sex marriages because the Federal government can't override a state definition of marriage. United States v Windsor overturned DOMA for the exact same reason, i.e. the Federal government cannot override a state's definition of marriage.
In April of this year, SCOTUS will hear arguments concerning four different cases (Bourke v. Beshear, DeBoer v. Snyder, Obergefell v. Hodges, and Tanco v. Haslam) where lower courts ruled on some aspect of the same-sex marriage debate. They did, however, limit the case (which will probably become known by the first of the lower court cases referenced, Obergefell v. Hodges) to two questions:
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The following is my intellectual analysis of how the court might rule if they follow existing Supreme Court precedent and the reasoning that was expressed in Windsor, the most recent case concerning same-sex marriage. This analysis does NOT express my own opinion of how life should be in these United States, nor in how marriage should be viewed. I am also not attempting to predict how SCOTUS WILL rule... anyone who claims they can reliably predict that is either selling something or smoking something. It is quite possible that SCOTUS might set a new precedent and discard the old Baker standard from 1971... it wouldn't be the first time that the Court broke with precedent.
So, for what it's worth...
For Question #1, the court answered it way back in 1971. The lower courts that have overturned bans on same-sex marriage have done so using aspects of the US Constitution, despite the fact that SCOTUS ruled in 1971 that there was no "substantial federal question" involved. If SCOTUS follows the 1971 precedent and the logic embodied therein, they could rule that states are not required by the US Constitution to license a marriage between two people of the same sex.
For Question #2, the court answered that question in 2012 when it overturned Section 3 of DOMA. Given that the Federal government can't overrule a marriage recognized by a state, and given that states are required to give full faith and credit to the actions of other states, then a state cannot decline to recognize a marriage that was performed in a state that recognizes same-sex marriages. If SCOTUS follows the 2012 precedent and the logic embodied therein, they would rule that states are required by the US Constitution to recognize same-sex marriages legally performed in other states.
Could I be wrong? Oh, heck, yes. As I said, I'm not predicting how SCOTUS will rule, I'm only trying to look at how precedent stands at the moment. Precedent seems to point the direction I outlined above, and we've even seen a recent display of the logic I rely on for this opinion piece.
It would be easy to say that SCOTUS should make the recognition of same-sex marriages mandatory for all states, and while one part of me likes that, a larger part is more wary. Do you recall the old saying, the ends do not justify the means? It is possible for SCOTUS to issue a ruling that accomplishes the goal, but produces unforeseen consequences that aren't like anything we might expect. Every legal decision impacts FAR more than the question directly at hand, because the same logic used to arrive at the decision can be applied to different circumstances. Eventually, SOME enterprising young lawyer could provide us all with an unpleasant surprise that the Courts are forced to sanction.
If the Court does rule that states must issue same-sex marriage licenses, then I will be reading their logic closely to see if I approve of their logic. No matter how they rule, however, you can be sure I'll be commenting on it at some point.