Whenever I discuss same-sex marriage with my students, I love flummoxing them by explaining the Supreme Court resolved this issue 40 years ago in Baker v. Nelson. In this case, the Supreme Court dismissed “for want of a substantial federal question” a case from the Minnesota Supreme Court upholding a law limiting marriage to those of the opposite sex. At the time, where there was mandatory appellate review, this decision would have been considered decided on the merits, and been a binding precedent. On the merits, the Court didn’t even say the ban survives rational basis review. It said there is no “substantive federal question” to even consider.

Fast-forward 4 decades. The Supreme Court did not have the occasion to address this issue in Perry, as there was no standing. Yet, just about everyone else has argued the case is not controlling. Justice Ginsburg, Solicitor General Verrilli, and countless federal courts have all said the precedent is no longer binding, for a whole host of reasons. So what do we make of Baker? The Court can brush it aside in a single sentence. But should lower courts do so on their own?

This brings us to Cincinnati, where the 6th Circuit heard arguments considering the constitutionality of several gay marriage bans. Chris Geidner reports that Judge Sutton asked numerous questions concerning the validity of Baker v. Nelson.

Sutton’s first issue concerned a 1972 Supreme Court summary decision that dismissed a Minnesota same-sex couple’s marriage claim “for want of a substantial federal question,” meaning that the justices did not believe the couple could make a claim that they had a constitutional right to marry. The case, Baker v. Nelson, was discussed in the briefing for the Supreme Court case challenging California’s Proposition 8, but the court did not have to address the issue because it dismissed the case on standing.

Sutton’s first question to Carole Stanyar, representing a Michigan couple seeking to marry in the state, was to ask her whether the appeals court — since the Supreme Court has not specifically overruled Baker — is “stuck” with the decision that same-sex couples cannot bring a constitutional claim for equal marriage rights.

Although other courts have held since last year’s Supreme Court decision that struck down part of the Defense of Marriage Act in United States v. Windsor that Baker is no longer controlling law, Sutton didn’t sound convinced. He cited other Supreme Court cases where the court held that changed reasoning in a related line of cases is not enough to allow lower courts to ignore an earlier precedent that is directly on point.

Now, you will recall that Judge Sutton cast a vote in favor of upholding the individual mandate. That’s the part everyone remembers. But did anyone (other than Ilya Shapiro and I) actually read his opinion? He didn’t do what Judge Silberman did, and find the law fit within the Court’s commerce clause jurisprudence. He didn’t do what Judge Kavanaugh did, and write an opinion about tax law. Judge Sutton issued a lengthy opinion that largely ducked the issue. As I noted in Unprecedented:

But the most significant jurisprudential aspect of the opinion was what Judge Sutton wrote separately. The fact that the law might “be unconstitutional as applied to some individuals, [but] not to all of them,” he found, was sufficient to defeat a challenge to the law on its face. Sutton was able to save the individual mandate without having to base his ruling on the deeper grounds on which it might be unconstitutional. He found that because the individual mandate was constitutional as applied to some people who already had insurance, the court should not find it unconstitutional as applied to all people.

No other judge came to this conclusion.

Judge Sutton has a reputation of judicial minimalism, and I think he would be proud to admit that role. To give you another example, Judge Sutton has written that he is opposed to en banc review for error correction, and would rather let the Supreme Court fix the 6th Circuit’s mess. (I clerked there, and I can attest to that messiness).

To get a better sense of his philosophy, check out an article he wrote in the Marquette Alumni Magazine. Sutton wrote:

Consider the two possibilities. If forced to generalize, I would suggest that, in most close constitutional cases, the Court should err on the side of deference to the elected branches—on the side of judicial restraint. More often than not, the Court poses a greater risk to the country by invalidating laws than by letting the political processes oversee them. The American people are more likely to accept the resolution of difficult social and economic issues when they have a say in the matter. While democracy is flexible, judicial review is not. While democracy is designed to adjust to new circumstances, judicial review generally is not. And while all legislative and judicial decisions will have unintended (and unknown) consequences, the elected branches are far better equipped to respond to them than life-tenured judges. In close cases, it thus makes sense for courts to err on the side of democracy—to allow the elected branches of government to monitor, adjust to, and ultimately solve, as best they can, difficult social and economic problems.

This is quite similar to Judge Sutton’s philosophy expressed in his concurring opinion in the 6th Circuit’s ACA case (though Judge Sutton did not think the ACA case was even close).

Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

This brings us back to Baker v. Nelson. Wouldn’t it be keeping with restraint, and a respect for the hierarchy of the courts, for a Circuit Judge to simply stay his hand, say the Supreme Court resolved this forty years ago, and let the Justices figure it out for themselves. The democratic process would be maintained, and it would be up to the Nine to change it.

Update: In the comments, Anonymous offers what could be a draft opinion from Judge Sutton:

In Baker v. Nelson, 299 Minn. 310 (1971), a gay couple challenged their denial of a marriage application under the Equal Protection and Due Process Clauses. Those are the same challenges Appellees brought and prevailed on below. The plaintiffs in Baker v. Nelson, were not as succesfull. After the state court supreme court denied them relief, the federal Supreme Court dismissed their apeal for want of a substantial federal question. Baker v. Nelson, 409 U.S. 810 (1971).

Summary dismissal for want of a substantial federal question is a binding precedent on the merits. See Hicks v. Miranda, 422 U.S. 332, 344 (1975). “If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should the case [sic] which directly controls, leaving to this Court the prerogative of overruling its own decision.” Rodriguez de Quijas v. Shears on/American Express, Inc., 490 U.S. 477, 484 (1989); see also Hicks, 422 U.S. at 344-45 (“[L]ower courts are bound by summary decision by [the Supreme Court] until such time as the Court informs them that they are not.”).

Whatever the merits of Appellants’ arguments are, they are ultimately for the Supreme Court to decide. Bound by Baker v. Nelson and not in a position to judge whether the Supreme Court has overruled itself, this Court REVERSES.

Update 2: Dale Carpenter also opines that Judge Sutton is “most apt” to dismiss the appeal based on Baker v. Nelson.

First, I think Judge Sutton is most apt to accept the view that the Supreme Court’s 1972 summary refusal to hear an appeal in Baker v. Nelson, a case in which the Minnesota Supreme Court rejected a same-sex marriage claim, is still binding on lower courts. The main argument against that view has been that significant doctrinal change since 1972 have eroded the precedential authority of Baker. Sutton suggested that he thought things were a bit murky, but that lower courts were probably still bound by it. If that’s the basis for his opinion, it could actually be a quite brief decision simply rejecting the claims as precluded by Baker. It would then avoid all of the difficulties in deciding the substantive merits of the same-sex marriage claims, like whether there’s a fundamental right to marry, or whether sexual-orientation discrimination should be subject to heightened scrutiny, or whether there’s animus in state constitutional amendments, or whether there’s even a rational basis for laws limiting marriage to opposite-sex couples. If Baker controls–a conclusion all of the other federal courts have rejected since Windsor–then the Sixth Circuit is bound by it regardless of the merits. The Supreme Court, of course, will not be so inhibited and any opinion along these lines by the Sixth Circuit would be a parenthetical in a footnote in the history of these cases. If same-sex marriage advocates are going to lose in the Sixth Circuit, as appears likely, the least harmful loss would be one grounded on Baker.