- The Washington Times - Sunday, November 9, 2014

A four-decades-old Supreme Court ruling could have a direct bearing on the outcome as the high court appears on the road to a showdown over gay marriage and the Constitution.

A 6th Circuit Court of Appeals decision last week to uphold anti-gay marriage statutes in four states — Ohio, Michigan, Kentucky and Tennessee — breaks with a string of rulings in other circuits, setting up a likely Supreme Court clash. But now comes the question of whether the court’s 11-word order in a 1972 case means the court has already set a precedent for letting the states decide the issue.

Dozens of federal and state judges have pondered that question and said “no” — the order issued more than 40 years ago in the Baker v. Nelson case cannot possibly still be valid when the high court has signaled its support for gay rights in more recent cases.

But Thursday’s ruling by a panel of the 6th Circuit Court of Appeals has revived the question of whether Baker v. Nelson — which said gay marriage is not a federal issue — is binding on lower courts.

The 6th Circuit got the Baker order “exactly right,” said constitutional law professor John Eastman, who is chairman of the National Organization for Marriage, which opposes gay marriage and hopes to use the Baker precedent.

For years, states and traditional values groups have cited the 1972 Baker order in their arguments that states have the right to define marriage as they wish, including restricting it to the union of a man and a woman. The Baker case concerned two Minnesota men who argued that they should be allowed to legally marry under the Constitution’s due process and “equal protection” clauses — the same argument being pushed today by gay marriage activists.

The Minnesota Supreme Court ruled against Richard “Jack” Baker and James Michael McConnell, saying the institution of man-woman marriage “is as old as the book of Genesis,” and banning gay marriage did not violate the Constitution.

The gay men appealed to the Supreme Court, which replied, “The appeal is dismissed for want of a substantial federal question.”

Such orders are deemed to be rulings on the merits of cases — and they are also “binding” on lower courts until the Supreme Court instructs otherwise, wrote 6th Circuit Court Judge Jeffrey S. Sutton, who wrote the Nov. 6 ruling upholding the traditional marriage statutes in Michigan, Ohio, Tennessee and Kentucky.

“It matters not whether we think the [Baker] decision was right in its time, remains right today or will be followed by the [Supreme] Court in the future,” Judge Sutton wrote. “Only the Supreme Court may overrule its own precedents, and we remain bound by even its summary decisions ‘until such time as the Court informs [us] that [we] are not.’”

However, dozens of judges have agreed with gay rights attorneys, who argued that the Supreme Court has effectively overruled the Baker order by striking down a gay discrimination law in 1996, in decriminalizing sodomy in 2003 and striking down a federal law denying benefits to legally married gay couples in last year’s Windsor decision.

The more recent decisions all “make clear that Baker is no longer authoritative,” 7th Circuit Court Judge Richard A. Posner wrote in that court’s recent ruling for gay marriage in Wisconsin and Indiana, adding that 1972 was “the dark ages” regarding legal battles on gay rights.

Judge Martha Craig Daughtrey of the 6th Circuit, who dissented in last week’s ruling, also rejected the idea that Baker was viable.

“If ever there was a legal ‘dead letter’ emanating from the Supreme Court,” the Baker order “is a prime candidate,” she wrote. “It lacks only a stake through its heart.”

Still, in addition to the 6th Circuit, the 1st Circuit Court of Appeals has called Baker binding law, as have dissenting judges in the 2nd and 10th Circuit Courts.

The 6th Circuit judges are “clearly right” about Baker, while other courts “have jumped the gun on this,” said Mr. Eastman. The Supreme Court has also said that even when there are “doctrinal developments,” “it’s up to us — the Supreme Court, not the lower courts — to say so,” he said.

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