So what do we make of the 1971 case of Baker v. Nelson? RBG says not much.
Cooper: The issues, the constitutional issues that 10 have been presented to the Court, are not of first 11 impression here. In Baker v. Nelson, this Court 12 unanimously dismissed for want of a substantial Federal 13 question.
JUSTICE GINSBURG: Mr. Cooper, Baker v. 15 Nelson was 1971. The Supreme Court hadn’t even decided 16 that gender-based classifications get any kind of 17 heightened scrutiny.
MR. COOPER: That is —
JUSTICE GINSBURG: And the same-sex intimate 20 conduct was considered criminal in many States in 1971, 21 so I don’t think we can extract much in Baker v. Nelson.
MR. COOPER: Well, Your Honor, certainly I 23 acknowledge the precedential limitations of a summary 24 dismissal. But Baker v. Nelson also came fairly fast on 25 the heels of the Loving decision. And, Your Honor, I 1 simply make the observation that it seems implausible in 2 the extreme, frankly, for nine justices to have — to 3 have seen no substantial Federal question if it is true, 4 as the Respondents maintain, that the traditional 5 definition of marriage insofar as — insofar as it does 6 not include same-sex couples, insofar as it is a gender 7 definition is irrational and can only be explained, can 8 only be explained, as a result of anti-gay malice and a 9 bare desire to harm.
Of course, RBG argued all those gender cases.
(Please excuse the line numbers)