Did the Supreme Court already settle the gay marriage issue, way back in 1972?
A whole lot of judges who are being asked to decide whether states may ban same-sex couples from marrying think the Supreme Court clearly gave them the answer last year: no.
But a few judges think the Supreme Court provided the answer more than 40 years ago: yes.
That reading comes from a one-sentence order the court issued in a 1972 case, Baker v. Nelson, which said there was no “substantial federal question” in a state’s decision to ban same-sex marriages.
The dismissal of that long-ago case might be the reason that same-sex marriage supporters see their winning streak in federal courts come to an end.
And it could give lower court judges, who know the ultimate answer on same-sex marriage will come from the Supreme Court, a way to uphold voter-approved state bans without deciding the thorny constitutional questions that accompany the issue.
But we could back even further, to 1967's Loving v. Virginia, a case in which the Supreme Court went in a different direction, when that state's miscegenation law became the first state marriage law to be invalidated. Mildred Jeter, a black woman, and Richard Loving, a white man, had been found guilty of violating Virginia's ban on interracial marriage and ordered to leave the state. The court ruled that Virginia's law violated the Equal Protection Caluse because it "ividiously classified on the basis on race." But it also said the law violated the Due Process Clause because it "unduly interferred with" the "fundamental freedom of marriage (my emphasis)."
If the freedom to marry is "fundamental," doesn't it apply to everybody equally, to gay couples and straigt ones, tot he mentally retarded? Or can the right be withheld from some -- inmates, say, or cousins How about brother and sister?
At any rate, we know this is going to be settled by the Supreme Court. We know that the court values precedent, but when past rulings go in different directions, I think it's hard to guess which caes they will consider most important. Given the current court's 5-4 split on hot-button issues like this, with Kennedy the swing vote who could, um, go either way, I think it's mostly a waste of time to speculate.
But, hell, that's what I do. I've been predicting gay marriage will soon be the law of the land, and I guess I'll stick with that.