When a Baker Summary Dismissal Becomes Stale: On Same-Sex Marriage Bans and Federal Constitutional Guarantees
17 The Journal of Gender, Race and Justice 137-62 (2014)
Posted: 28 Oct 2014
Date Written: October 27, 2014
Abstract
Federal courts addressing challenges to state same-sex marriage bans disagree about the degree to which Baker v. Nelson is binding. Yet, that confusion about the reach and relevance of Baker is surprising, both because some of the lower courts are ignoring what the Court itself has said about the precedential effect of summary dismissals or affirmances and because protection and due process jurisprudence have changed so much since the issuance of the Baker dismissal that the case cannot plausibly be thought to be dispositive on the implicated issues. Federal judges must not pretend that Baker allows them to evade their duty to interpret and apply the law, and they must try to take more seriously the developments in due process and equal protection jurisprudence that have taken place over the past four decades.
Keywords: due procees, equal protection, same sex marriage, summary affirmance, summary dismissal
JEL Classification: K10
Suggested Citation: Suggested Citation