The Great Undoing?

Could a seemingly obscure Supreme Court ruling from 37 years ago prove the undoing of the effort to overturn California's Prop. 8 and establish a federal right to same-sex marriage?

BY Andrew Gumbel

June 19 2009 11:00 PM ET

As all sides gear up to do battle over the Prop. 8 suit filed in the San Francisco district court last month by superstar lawyers Ted Olson and David Boies, constitutional experts sympathetic to the marriage equality cause are expressing deep concern over the 1972 case known as Baker v. Nelson and its potential to scupper every last argument about equal protection and due process under the U.S. Constitution.

Here's why.

Baker v. Nelson was a very early same-sex marriage case pitting two gay student activists from the University of Minnesota against the clerk of the county court in Minneapolis. The activists wanted to get married and applied for a license. The clerk said no, on the grounds that they were two men, not a man and a woman. The case went to court, and the activists lost at every stage, all the way up to the Minnesota supreme court and beyond. The U.S. Supreme Court, for its part, refused to hear the case, citing a lack of a "substantial federal question."

So far, unsurprising, given the times.

The problem stems from the fact that, at the time, the Supreme Court enjoyed something known as "mandatory appellate jurisdiction." In plain English, this meant that once the Supreme Court ruled on a legal matter, only the Supreme Court had the power to reverse the decision. The lower courts' hands were tied, and if any subsequent case came their way they had no choice but to say they had no power in the matter.

A lot of things have changed since 1972, not least the fact that the Supreme Court lost its power of mandatory appellate jurisdiction in the mid '80s. It is also not at all clear whether the jurisdiction in the Baker case ever extended to all same-sex marriage cases, or whether it applied only to Minnesota and the particular circumstances considered at the time.

No matter. Baker v. Nelson is now being cited as a reason why the district court in San Francisco should dismiss the Boies-Olson suit -- and any other similar federal suit -- out of hand. What makes it dangerous is that a federal judge nervous about jumping into the same-sex marriage controversy might just reach out for it gratefully as an excuse not to commit one way or the other.

That, in turn, means the Boies-Olson team might not win the lower court victory they want to maximize their chances of being heard, and then winning, in the U.S. Supreme Court.

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