How far have we come from Baker v. Nelson (1972), in which the Supreme Court of the United States dismissed an appeal from the Minnesota Supreme Court “For want of a substantial federal question.” Nelson, of course, held that Minnesota law–which was silent as to gender–limited marriage to a man and a woman.
Perhaps most noteworthy, in his brief, the Solicitor General said that Baker v. Nelson was not controlling on the Prop 8 case.
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”)
This was most certainly wrong, but it doesn’t matter. Justice Ginsburg concurred during oral arguments:
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.
Almost forty years later, the Minnesota legislature has enacted a law that would allow same-sex couples to marry. Minnesota is now the 12th state to legalize SSM.