Baker v. Nelson: The Often Forgotten Supreme Court Same-Sex Marriage Case

While the stage is set for the U. S. Supreme Court to rule on the issue of same-sex marriage, this is a good time to review the Courts prior history with this issue.

In 1972, the Court ruled that a Minnesota same-sex couple had no constitutional right to marry. The importance of the precedent established in Baker v. Nelson will be one of the many issues the Supreme Court will have to address when it considers the legality of California’s Proposition 8 and the Defense of Marriage Act.

The case stemmed from a marriage application filed by two male University of Minnesota students. The clerk denied the application based on a state law that restricted marriage to “persons of the opposite sex.” The couple then filed a lawsuit against the clerk, Gerald Nelson, asserting violations of their due process and equal protection rights guaranteed under the Fourteenth Amendment and their “privacy rights” founded in the Ninth and First Amendments. A lower court upheld the denial of the application and dismissed the claims.

The Minnesota Supreme Court upheld the decision. It ruled, “The institution of marriage as between a man and a woman, uniquely involving the procreation of children within a family, is as old as the book of Genesis.” The court further held that the Supreme Court’s landmark decision in Loving v. Virginia did not apply because “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” The two men subsequently appealed to the U.S. Supreme Court, which heard the case under mandatory review.

The Supreme Court’s decision was only one sentence: “The appeal is dismissed for want of a substantial federal question.” Oral arguments were not held, and the justices did not provide an explanation for their decision.

Nonetheless, the Court upheld the lower court’s ruling that the same-sex couple had no fundamental right to marry. As a result, opponents of same-sex marriage have used it to bolster their arguments for over 30 years. They maintain that Baker v. Nelson supports the argument that states and the federal government can define marriage as between opposite sex partners, just like Minnesota did, without running afoul of equal protection guarantees.

The Supreme Court’s stance on gay rights has clearly shifted since Baker v. Nelson. In addition, courts, including the First Circuit, have been able to side step its precedent when ruling in favor of same-sex couples. It will be interesting to see whether the Supreme Court is able and willing to do the same.