1. jpeckjr says

    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?

  2. Jon B says

    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.

  3. says

    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.

  4. Adam says

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

  5. Disgusted American says

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

  6. says

    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?

  7. nate says


    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…

  8. says


    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.