In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the recent retirement of Justice David Souter.
In Sonia Sotomayor’s confirmation hearings today, Senator Chuck Grassley (R-IA) followed up as promised on Baker v. Nelson, the 1972 Supreme Court marriage equality case. Yesterday, Judge Sotomayor asked for an opportunity to review the holding in Baker before making any conclusions. (see yesterday’s post for more) Senator Grassley began his questioning today by reviewing Baker and then asked Sotomayor whether she would “respect the Court’s decision in Baker based upon Stare Decisis and if not, why not?” Sotomayor responded by noting that “Bakerwas decided at the time where jurisdiction over federal questions was mandatory before the Supreme Court.” She continued her answer by saying that the question of the meaning of the dismissal of that appeal by the Supreme Court is “actually an issue that is being debated in existing litigation.” Because of that, Sotomayor said, the American Bar Association does not permit her to prejudge what a prior decision means until that question is before her as a justice of the Supreme Court. Her response – consistent with many of her responses over the last few days – is reasonable given the circumstances surrounding pending federal marriage equality cases, as well as the likelihood that such a case will come before the Court during Sotomayor’s tenure. (For full video see this morning’s post).
Yesterday, Senator Grassley appeared puzzled with Sotomayor’s “hedging” on the marriage case because, in his view, Baker was precedent, just like Roe v. Wade or Kelo v. City of New London. However, it should be noted that the precedential value of Baker’s one-line decision-that is, its ability to the control the outcome in a future marriage equality case- is less than both Roe and Kelo in their respective areas of law. In both Roe and Kelo, the Supreme Court heard oral arguments and wrote extensive opinions. Baker, in contrast, was recognized by the Court at a time when the Supreme Court was required to examine all cases that claimed to contain a federal question. Furthermore, any marriage equality case to come before the Court must be read in light of the Court’s 2003 decision in Lawrence v. Texas. Lawrence was not a marriage case, yet it set a new precedent on the treatment of LGBT Americans under the law. When the Supreme Court does choose to hear another marriage case, it will undoubtedly consider the impact of Lawrence on the case at bar.
Senate questioning of Sonia Sotomayor has concluded. We will continue to monitor the testimony of the witness panels. Check back with us on our Equality in the Courts website for up-to-date information and commentary.
Contributed by Anthony Catalino, Summer 2009 McCleary Law Fellow
![HRC-BACKSTORY [BLOG]](http://174.121.110.138/~hrcorg/hrcbackstory/images/logo/hrc-backstory.jpg){kind=logo}
