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Friday, August 3, 2012

Arthur Leonard CA Prop 8 appeal still citing Jack Baker gay marriage case

Baker et al. v. Nelson, United States Reports, Volume 409, Cases Adjudged in the Supreme Court, October Term, 1972, Oct. 10, 1972 'dismissed for want of a substantial federal question.'

PHOTO: An original printed bound copy of first U.S. Supreme Court decision on same-sex marriage that was initiated by University of Minnesota law student Jack Baker in and his lover McConnell in 1970 after they noticed that Minnesota State law did not specify the gender of married couples and they got married: Baker et al. v. Nelson, Oct. 10, 1972, "United States Reports, Volume 409, Cases Adjudged in the Supreme Court, October Term, 1972," U.S. Government Printing Office, 1974, p. 810. At the time, and unlike today, state court cases that had a Constitutional rights question were automatically entitled to be reviewed by the U.S. Supreme Court, which often refuses to hear cases. However, the court frequently dodged this obligation by using the same one-sentence ruling that they used in this case, "Dismissed for want of a substantial federal question." Given how frequently the Court used this one-sentence ruling, it may or may not have been because the Court had actually given it enough thought to decide that marriage was a matter of State law and not Federal law. However, it is true that marriage was strictly a matter of state law until plural and interracial marriage cases were challenged and after anti-gay marriage groups had forced the passage of Federal laws, such as the Defense of Marriage Act, which by definition make marriage an issue of Federal law. Pending state gay marriage cases, which are about to be decided by the U.S. Supreme Court, have made this point to the Court. (See previous posts Baker v. Nelson 1972 Supreme Court order on gay marriage (7/22/09) and (NY Constitutional law Professor) Arthur S. Leonard on Baker v Nelson gay marriage case (7/28/09))

A new post by New York Law School Professor Arthur S. Leonard, "Prop 8 Supporters File Supreme Court Appeal," posted July 31, 2012 notes "They also argued that the 9th Circuit ruling is inconsistent with the Supreme Court's action in 1972 in Baker v. Nelson, in which it dismissed a same-sex marriage appeal from Minnesota on the ground that the right of same-sex couples to marry does not present "a substantial federal constitutional question.""

See previous posts Frank Kameny letter to gay marriage pioneer Jack Baker in 1973 (7/16/12) and Jack Baker deserves mainstream press coverage after gay marriage ruling (7/7/12).