Volume 89, Number 5

November 2014

Eat, Drink, and Marry: Why Baker v. Nelson Should Have No Impact on Same-Sex Marriage Litigation

Andrew Janet

Due to a now-repealed mandatory jurisdiction statute, in 1972 the Supreme Court was forced to decide the issue of whether there was a constitutional right to same-sex marriage. Their opinion, as stated in the case Baker v. Nelson, was: “The appeal is dismissed for want of a substantial federal question.” That sentence literally comprises the entirety of the summary opinion, and that sentence has obstructed progress in same-sex marriage litigation for decades, including in the last few years. This Note argues that Baker v. Nelson should carry zero precedential weight in 2014. Intervening doctrinal developments should have rendered the case overruled, particularly Zablocki v. Redhail, which conclusively stated a fundamental right to marry under the Due Process Clause. Furthermore, there are significant differences between the factual circumstances of Baker and those of modern cases, particularly the fact that Baker involved a clerk’s administration of a vague statute as opposed to statutes or constitutional provisions that are facially discriminatory. Contemporary same-sex marriage cases should be decided on their merits and not at all influenced by a one-line summary disposition from a completely different era of the marriage equality movement.