Solicitor General: Baker v. Nelson is Not Controlling on Prop 8 Case

February 28th, 2013

I know this is the key question everyone was wondering about:

Contrary to petitioners’ contention (Br. 27-28), this Court’s one-line summary dismissal in Baker v. Nelson ,409 U.S. 810 (1972), in which it dismissed an appeal as of right from a state supreme court decision denying mar-riage status to a same-sex couple, neither forecloses theapplication of heightened scrutiny nor dictates the resultin this case. Summary dispositions are “not of the sameprecedential value as would be an opinion of this Courttreating the question on the merits.” Edelman v. Jor-dan , 415 U.S. 651, 670-671 (1974); see Massachusetts Bd. of Ret. v. Murgia , 427 U.S. 307, 309 n.1 (1976) (percuriam). In any event, neither the underlying statesupreme court decision, Baker v. Nelson , 191 N.W.2d185, 187 (Minn. 1971), nor the questions presented in theplaintiffs’ jurisdictional statement, addressed the ap-plicability of heightened scrutiny to classifications basedon sexual orientation, 12-307 J.A. 559; see also id. at 570(describing equal protection challenge as based on the“arbitrary” nature of the state law); id. at 574 (statingthat “[t]he discrimination in this case is one of gender”)