Gay Marriage | News | Sonia Sotomayor

Same-Sex Marriage Raised in Sotomayor Hearings


Judge Sonia Sotomayor refused comment  on a question related to same-sex marriage today from Senator Charles Grassley (R-IA) because she said her answer might influence one of the many related marriage suits currently in the courts.

Watch it, AFTER THE JUMP...

The L.A. Times reports: "The subject was raised indirectly by Sen. Charles E. Grassley (R-Iowa). Grassley did not mention same-sex marriage directly, but that was the implication when he asked Sonia Sotomayor about a court ruling that said Minnesota could deny a marriage license to two men. Did she agree, he asked, that the case, Baker vs. Nelson, reserved the question of marriage to the states? In Baker, the Minnesota Supreme Court ruled that two men could be denied a marriage license because Minnesota law limited marriage to men and women. As she has with other topics, Sotomayor said she couldn’t comment because questions about marriage are pending in many courts and might reach the Supreme Court."

Grassley pressed her on the fact that it was precedent and that she had commented on Roe v. Wade as precedent. Sotomayor said she'd review the Baker case and return with comment tomorrow.

Watch it, AFTER THE JUMP...

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  1. Baker v Nelson was decided in 1971. It was possibly the first court case to deal with same-sex marriage. As I recall the facts from having read the case several years ago, a male-male couple applied for and received a marriage license issued by a county clerk in Minnesota. At the time, marriage licenses could be applied for through the mails. The clerk issuing the license believed them to be a male-female couple. Upon learning they were not, a case was filed. As I recall, the SC ruled that the license was invalid because MN statutes did not specifically authorize licenses could be issued to a same gender couple. It was a relatively narrow ruling and, as I recall, did not address a fundamental right to marry. Current MN law limits the issuance of marriage licenses to opposite gender couples and requires that the couple present themselves in person to make the application.

    Many state marriage statutes did not specify "one man, one woman" until after DOMA passed.

    The real question being asked concerns precedent in judicial matters. Any previous ruling is a precedent, but precedent is not sacrocanct, especially at the final appellate stage, such as a Supreme Court whether federal or state. Lower courts are more likely to rely on precedent. It is partly the role of supreme courts to assess whether precedents should stand. If precedents were always upheld and never overturned, we would still have racially segregated schools.

    I hope Judge Sotomayor, who has probably never heard of Baker v Nelson, makes that point about precedent.

    Of course, all of the more recent rulings affirming the right of same gender couples to marry are now precedent. Who knows what the MN Supreme Court might rule if a similar case was brought today?

    Posted by: jpeckjr | Jul 16, 2009 1:13:37 AM

  2. JPECKJR: While Baker v. Nelson is technically a decision on the merits, the case was dismissed by the Supreme Court, meaning they never delivered an opinion. Nonetheless, it is clear that what Sen. Grassley was asking was simply how she would rule on marriage equality. He must know that Supreme Court precedent is only binding upon lower courts. While technically stare decisis (the idea that precedent is binding) is supposed to apply to the Supreme Court decisions, the Court is obviously able to overturn precedent. If it wasn't, we would have been stuck with the Bowers decision and Lawrence could never have come out the way it did.

    Posted by: Jon B | Jul 16, 2009 1:45:19 AM

  3. Grassley wants to grill her on same-sex marriage (and of course grandstand for his far right base back home) and she is far too smart to play ball with him. I love how Blitzer says same-sex issues may come to the Supreme Court, "one of these days." No day too soon I fear.

    Posted by: David Ezell | Jul 16, 2009 4:50:51 AM

  4. Baker Vs Nelson is as much precedent as Varnum Vs Brian and Goodridge Vs Department of Public Health which legalized it.

    Posted by: Adam | Jul 16, 2009 5:31:08 AM

  5. Grassley is just upset and got his panties in a bunch cause IOWA passed SSM...

    Posted by: Disgusted American | Jul 16, 2009 9:45:25 AM

  6. The question that you should all be calling your senators and asking why it won;t be asked:

    In your confirmation hearing for the Federal bench, you indicated a hostility to the concept that gay people may have rights to things such as marriage, military service, or adoption. Would you like to revise or clarify you position on the issue now?

    Posted by: Landon Bryce | Jul 16, 2009 9:52:44 AM

  7. Landon,

    Are you saying that Sotomayor testifed to having homophobic positions? If so, where did you read that? Do you have a link to share with us?

    Obama may not be the "fierce advocate" we thought, but I'd doubt he'd appoint someone who is openly homophobic to the Supreme Court.

    BTW,given the certainty of the continuation of the conservative majority on the U.S. Supreme Court, shouldn't gay groups try to avoid taking a case to the Court? Does anyone believe that Anthony Kennedy, would join the progressive side of the Court to support gay rights? Just asking...

    Posted by: nate | Jul 16, 2009 12:14:20 PM

  8. Nate:

    Sotomayor did not testify to having homophobis positions. She testified to the belief that homophobic law should go unchallenged. Here is the relevant testimony:

    SEN. ASHCROFT: Do you believe that there's a constitutional right to homosexual conduct, by prisoners?
    MS. SOTOMAYOR: No, sir. There isn't. Case law is very clear about that.
    The only constitutional right that homosexuals have, is the same constitutional right every citizen of the United States
    has, which is not to have government action taken against them arbitrarily and capriciously. The Supreme Court said
    that last term, in Evans v. Romer (sp). But outside of that, that's a basic constitutional right, not to them in particular,
    but to the world that constitutes the US.
    SEN. ASHCROFT: Do you think there should be one, a special constitutional right.
    MS. SOTOMAYOR: I don't think that we should be making constitutional rights any greater than they exist right now.
    The Constitution should be amended sparingly, sir, as it has been throughout our history.
    It is something that should be done only after much history and much thought.
    SEN. ASHCROFT: Do you agree with the amendments that have been made to date?
    MS. SOTOMAYOR: Yes, sir. It's the document that I live by.
    SEN. ASHCROFT: I agree with them. And think it's good that they were amended. So, I, you know, I accept the
    So, in your judgment, you wouldn't read additional rights into the Constitution, like a right for homosexual conduct on
    the part of a prisoner.
    MS. SOTOMAYOR: I can't do it, sir. I can't do it because it is so contrary to what I am as a law-
    yer, and as a judge.
    The Constitution is what it is. We cannot read rights into them. They have been created for us.

    Posted by: Landon Bryce | Jul 16, 2009 12:29:07 PM

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