“It is better to learn wisdom late than never to learn” —Sir Arthur Conan Doyle, “The Man with the Twisted Lip” (1891)
It’s extremely rare for the U.S. Supreme Court — and the advocates arguing before it — to ignore a “binding precedent” concerning a case before that august tribunal. It is so unusual that it might be termed unprecedented, so to speak.
But that is what happened in the argument before the high court recently in the same-sex marriage litigation, DeBoer, et al. v. Snyder, No. 14-556, 562, 572 and 574. None of the five skilled attorneys arguing the four consolidated appeals or even the nine justices, for that matter, bothered to address the touchy topic of Baker v. Nelson, 409 U.S. 810 (1972), a Minnesota-spawned case that, 43 years ago, the court found insubstantial.
The Baker litigation has been the focus of considerable attention as the high court ponders marriage equality litigation. Baker involved an attempt in 1970 by a couple of gay men in Minneapolis to obtain a marriage license, which was denied by the Hennepin County clerk of court, a Hennepin County district court judge, and the Minnesota Supreme Court as well, which found the proscription against same-sex marriage engrained not only in Minnesota statutory law, but stemming from the Bible no less, reasoning that opposite-sex marriage “is as old as the book of Genesis.”
The case was appealed to the U.S. Supreme Court, which blithely refused to consider the case. It dismissively issued a one-sentence ruling that it was defective “for want of a substantial federal question.”
That declination to hear the case at that time was more than just a flick of a lawsuit deemed to be folly. A determination of lack of a worthy federal question, as the justices later explained, constitutes a decision on the merits, Mandel v. Bradley, 432 U.S. 173, 175 (1977). As such, it forms “binding precedent,” as later articulated by a couple of federal courts that addressed the matter prior to the Supreme Court’s hearing in late April, as well as the 6th Circuit, which felt “bound” by it in upholding same-sex marriage prohibitions in the four states that formed the basis of the high court hearing in late April.
Although the Baker case seemed to be the proverbial elephant in the room at the oral argument during the unusually long 2½ hours that the judges allotted to the case, the elephant was basically not in the jam-packed courtroom at all.
Only one fleeting, non-substantive mention of it was made, in passing, by one of the lawyers for the challengers no less, in the 134-page transcript, and not at all by the defenders of the marriage ban, nor by any of the justices who were not shy about posing questions and articulating their own positions. Astonishingly, the lawyers and jurists made more references to ancient Greek lifestyles and the marital practices of an obscure African tribe than to the Baker case that set the stage for the contemporary marriage equality litigation. The oral argument reflected more platitudes for Plato than points of precedent.
It is not unprecedented, of course, for the high court to depart from precedent, or stare decisis, particularly in decisions involving notable constitutional issues and civil rights, like the same-sex marriage matter.
In Brown v. Board of Education, 347 U.S. 483 (1954), which outlawed segregation of public schools and become the vanguard of the civil rights movement, the high court unanimously overturned its 58-year old precedent in Plessy v. Ferguson, 163 U.S. 537 (1896), that had upheld the “separate, but equal” doctrine for the races. More recently, in Lawrence v. Texas, 539 U.S. 558 (2003), the justices, by a narrower 6-3 margin, invalidated criminal prosecution for sexual relations between consenting same-sex adults, despite a precedent 17 years earlier, rejecting that position by a 5-4 vote in Bowers v. Hardwick, 478 U.S. 186 (1986).
In those cases, the high court took pains to explain why it was departing from precedent. It may do so again when it issues its ruling in the current same-sex litigation, which is expected before the last week in June when the court adjourns for the summer. But both sides and the justices themselves were inclined to stare down stare decisis in the same-sex marriage hearing.
Based on the paucity of reference to Baker during the oral argument, it is questionable whether they will bother with any explanation at all if they depart from it and rule in favor of the same-sex claimants.
Those claimants probably don’t care how the court explains its rationale as long as it consigns Baker in the dustbin of history. Their adversaries seem just as eager to distance themselves from the Baker precedent by eschewing even mentioning it to the tribunal.
The reluctance to mention Baker in the same-sex marriage case by all of the participants leaves one wondering why it was disregarded, either by the challengers seeking to overcome it or the defenders articulating that it should be applied to by the court.
There are, of course, a number of reasons why following precedent is good practice. It lends stability and predictability to individuals, businesses, government entities and other organizations as well as their counsel. As Justice Louis Brandeis explained in a memorable dissenting phrase: “In most matters, it is more important that the … law be settled than that it be settled right,” Burnet v. Coronado Oil & Gas Co., U.S. 285 U.S. 393 (1932).While it need not be slavishly followed, adherence to precedent also minimizes the potential that changing ideological views of judges will color the outcome, which brings about disrespect and diminishment of credibility for the integrity of the judicial process and those decision-makers.
Setting aside changing ideological complexion of the court, a variable that always exists over time, there are at least four reasons, or more, why the high court may yet again depart from the “binding precedent” of Baker. One is changing times, as the passage of time tends to erode the strength of precedent in some circumstances. Yet, on other occasions, the long-standing status of a precedent can fortify its posture. The 43 years that have elapsed since the high court brushed aside the Baker case is nearly as long as the Plessy precedent of “separate but equal” stood, and more than twice as long as the vitality of Bowers, among noteworthy precedents that have been overturned.
Along with changing times come modifications in public attitudes and social mores. That same-sex marriage has gained approval by a majority of the population, hovering at 60 percent according to the number of polls, compared with barely one-third a decade ago, can be a forceful factor in setting aside precedent. While courts do not like to acknowledge that they are being guided by public opinion, as satirist Finley Peter Dunne insightfully remarked more than a century ago: “The Supreme Court follows the election returns.”
On the other hand, Chief Justice John Roberts pointed out at oral argument, a position he has noted previously, that swaying of public opinion in support of gay marriage, as reflected in the growing number of states that have legislated to recognize such arrangements, cuts another way. It can augur in favor of the judiciary staying its hand and sticking with stare decisis to permit the political process to work its will.
The eroding of the strength of a precedent by recent case law also forms a basis for overturning it. That happened with Plessy, which was undermined by a series of decisions by a high court over the years leading up to Brown v. Board. The same pattern is happening to same-sex marriage litigation, with so many cases in the last decade, undermining the legitimacy of their proscription. This trend was highlighted by the high court’s ruling in U.S. v. Windsor, 133 S.Ct. 2657 (2013), invalidating the Federal Defense of Marriage Act, which barred the federal government from recognizing the legality of same sex marriage relationships, even for those who were married in states where the relationship is lawful.
Additionally, the court may acknowledge that its prior precedent was wrong, an admission that has been made grudgingly, but occasionally, by tribunals. As the Supreme Court itself has contritely admitted: “[W]hen convinced of former error, this court has never felt constraint to follow precedent … this court throughout its history has freely exercised its power to re-examine the basis of its constitutional decisions,” Smith v. Allwright, 321 U.S. 649, 665 (1944).
The first three reasons, among others, may be at work if the same-sex marriage proponents prevail in the pending litigation. As for the last one, an acknowledgement of fallibility, don’t count on it. As Justice Robert Jackson said, in a concurrence, describing himself and his colleagues on the high court: “We are not final because we are infallible, but we are infallible only because we are final,” Brown v. Allen, 344 U.S. 443, 540 (1953).
Or, to paraphrase another sage observer, Yogi Berra, “It’s not over until it’s over.”