- The Washington Times - Tuesday, March 26, 2013

The U.S. Supreme Court takes up a pair of same-sex marriage cases this week, and much of the legal speculation is clearly wrong. Those looking to undermine the traditional understanding of matrimony are obsessed with a 1967 decision, Loving v. Virginia, which overturned state laws barring interracial marriage.

Citing Loving — so named for the couple, Richard and Mildred Loving, who brought the lawsuit that voided anti-miscegenation laws — is meant to mislead. Activists want to frame Tuesday’s case considering the constitutionality of California’s Proposition 8, which bans same-sex marriages and Wednesday’s discussion of the federal Defense of Marriage Act, which leaves it to each state to determine whether to recognize homosexual unions, as a challenge to the principle of equality. It clearly is not. Race is not interchangeable with sex: The Lovings (both now dead) were a man and a woman; thus, regardless of the color of their skin, their marriage conformed to the traditional understanding that marriage is the union of one man and one woman.

The more relevant precedent came five years after Loving. In Baker v. Nelson, the high court upheld the Minnesota Supreme Court’s rejection of a lawsuit brought by Richard Baker and James Michael McConnell, a homosexual couple whose application for a marriage license in Minneapolis had been denied by Gerald Nelson, then clerk of the Hennepin County District Court, in 1970. Messrs. Baker and McConnell sued to force the clerk to issue the license, arguing that Minnesota law preventing marriage of same-sex couples was unconstitutional.

Minnesota’s highest court expressly rejected a comparison to Loving. “In common sense and in a constitutional sense, there is a clear distinction between a marital restriction based merely on race and one based upon the fundamental difference in sex,” the justices held. The U.S. Supreme Court dismissed the appeal “for want of a substantial federal question.” Because the case came to the justices through mandatory appellate review, this summary dismissal constituted a decision on the merits and established Baker v. Nelson as precedent.

For those urging the Supreme Court to strike down Proposition 8 and the Defense of Marriage Act, Baker v. Nelson is the precedent that dare not speak its name. As binding precedent, Baker prevents lower courts from arriving at a contrary conclusion, and it has been cited in at least a half-dozen state and federal cases since 2005 upholding various state laws barring same-sex marriage. The reason the Proposition 8 case is now before the high court is that a federal magistrate ignored this precedent. Judge Vaughn Walker, who is himself a homosexual, declined to recuse himself from the case, as he should have, and issued an opinion that suited his own needs.

The Supreme Court should strike down Judge Walker’s decision on Proposition 8 because it better fits precedent and also uphold the Defense of Marriage Act. The union of one man and one woman is one of the foundations of society. It’s worth preserving.

The Washington Times