The Oklahoma District Court opinion, in finding that Baker v. Nelson is no longer controlling, comments on the Court’s curious silence on this point in United States v. Windsor.
Based on the Windsor I decision, it seemed likely that the Supreme Court would address Baker’s precedential value. See Windsor I, 699 F.3d at 178-79 (majority concluding that “doctrinal changes constitute another reason why Baker does not foreclose our disposition of this case); id. at 195 n.3 (Straub, J., concurring in part and dissenting in part) (acknowledging that “questions may stop being ‘insubstantial’ when subsequent doctrinal developments so indicate” but concluding that Supreme Court decisions had not “eroded Baker’s foundations such that it no longer holds sway”). However, no Justice mentioned Baker in any part of the Windsor decision. At least one commentator criticized this silence. Jonah Horwitz, When Too Little is Too Much: Why the Supreme Court Should Either Explain its Opinions or Keep Them to Itself, 98 Minn. L. Rev. Headnotes 1, 2 (2013) (explaining that Baker was “examined in detail” in the Supreme Court briefs and criticizing Supreme Court for failing to discuss Baker) (“For a case of such length and significance, it is nothing short of amazing that no one refers, even in passing, to what struck the lower courts and the litigants as a potentially dispositive case.”).
I’ve also queried this point. During oral arguments, Justice Ginsburg in Perry hinted it was not controlling. The SG agreed.
In any event, Minnesota legalized marriage equality, thus mooting Baker v. Nelson. Kind of.