Silhouette
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- Jul 15, 2013
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If that is the true conclusion of law (yet to be determined), like Sutton said, you need to delineate in writing how people's lonstanding right to set definitions for marriage in their state can "rightfully be taken away from them". That has to be carefully written out. When a civil right is taken away it cannot be done flippantly or vaguely from underneath.
Interim law says gay marriage is not legal in any state that did not vote it in.
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And now, claimants insist, must account for United States v. Windsor , 133 S. Ct. 2675 (2013), which invalidated the Defense of Marriage Act of 1996, a law that refused for purposes of federal statutory benefits to respect gay marriages authorized by state law. Yet Windsor does not answer today’s question. The decision never mentions Baker , much less overrules it. And the outcomes of the cases do not clash. Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor's reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations. Id.at 2691–92. Before the Act’s passage in 1996, the federal government had traditionally relied on state definitions of marriage instead of purporting to define marriage itself.Id.at 2691.
That premise does not work—it runs the other way—in a case involving a challenge in federal court to state laws defining marriage. The point of Windsor was to prevent the Federal Government from “divest[ing]” gay couples of “a dignity and status of immense import” that New York’s extension of the definition of marriage gave them, an extension that “without doubt” any State could provide... Windsor made explicit that it does not answer today’s question, telling us that the “opinion and its holding are confined to . . . lawful marriages” already protected by some of the States. Id. at 2696. Bringing the matter to a close, the Court held minutes after releasing Windsor that procedural obstacles in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), prevented it from considering the validity of state marriage laws. Saying that the Court declined in Hollingsworth to overrule Baker openly but decided in Windsor to overrule it by stealth makes an unflattering and unfair estimate of the Justices’ candor.
Even if Windsor did not overrule Baker by name,the claimants point out, lower courts still may rely on “doctrinal developments” in the aftermath of a summary disposition as a ground for not following the decision. Hicks,422 U.S. at 344. And Windsor , they say, together with Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996), permit us to cast Baker aside. But this reading of “doctrinal developments” would be a groundbreaking development of its own. From the perspective of a lower court, summary dispositions remain “controlling precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976); see Hicks, 422 U.S. at 343–45. And the Court has told us to treat the two types of decisions, whether summary dispositions or full-merits decisions, the same, “prevent[ing] lower courts” in both settings “from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977).
Lest doubt remain, the Court has also told us not to ignore its decisions even when they are in tension with a new line of cases. “If a precedent of this 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 follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see Agostini v. Felton, 521 U.S. 203, 237 (1997).
Just two scenarios, then, permit us to ignore a Supreme Court decision, whatever its form: when the Court has overruled the decision by name (if, say, Windsor had directly overruled Baker ) or when the Court has overruled the decision by outcome (if, say, Hollingsworth had invalidated the California law without mentioning Baker ). Any other approach returns us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court. In the end, neither of the two preconditions for ignoring Supreme Court precedent applies here. Windsor as shown does not mention
Baker , and it clarifies that its “opinion and holding” do not govern the States’ authority to define marriage. Hollingsworth was dismissed. And neither Lawrence nor Romer mentions Baker ,and neither is inconsistent with its outcome. The one invalidates a State’s criminal antisodomy law and explains that the case “does not involve . . . formal recognition” of same-sex relationships. Lawrence, 539 U.S. at 578....
...don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how— whether through the courts or through democracy. And, if through the courts, that does not tell us why—whether through one theory of constitutional invalidity or another. Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result. But they reach that outcome in many ways, often more than one way in the same decision...The Court’s certiorari denials tell us nothing about the democracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories. If a federal court denies the people suffrage over an issue long thought to be within their power, they deserve an explanation. We, for our part, cannot find one, as several other judges have concluded as well....
...There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.
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