SSM: WAS THE FEDERAL CONSTITUTIONAL ISSUE SETTLED YEARS AGO?: Lyle Denniston at SCOTUSblog
Thirty-two years ago this Fall, the Supreme Court decided the case of
Baker v. Nelson. It was not a full-scale ruling. In fact, this is the whole of the decision: "The appeal is dismissed for want of a substantial federal question." But the
Baker precedent--if that is what it actually is--is taking on new life in the current constitutional debate over same-sex marriage. Opponents of constitutionalizing a right to gay marriage, including the Justice Department, insist that the issue is already settled--by
Baker -- against federal constitutional support for such marriages.
Now, with the
first federal court ruling on Congress’ refusal to allow federal benefits for same-sex married couples (under the Defense of Marriage Act), the
Baker case has had its fullest airing in years in a lower court. And the judge concluded that the Court’s 1972 dismissal of
Baker "is not binding precedent" on whether it is unconstitutional for the federal government to treat same-sex couples differently by denying them marital benefits. That doubtless is not the last word on the subject, however. (The judge went on to uphold DOMA as applied to a federal law, without relying on Baker.) (Thanks to Howard Bashman of How Appealing for the link to the judge’s 30-page ruling.)
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