Baker v. Nelson: Flotsam in the Tidal Wave of Windsor's Wake

Abstract

Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the Supreme Court’s ruling in United States v. Windsor (2013) to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court when it returns to the issue. It then at some length shows one particular aspect of Windsor’s wake: the way it has helped lower federal courts unanimously and properly conclude that doctrinal developments after the Supreme Court summarily rejected a same-sex couple’s constitutional claims to a right to marry in Baker v. Nelson (1972) have rendered that decision no longer dispositive. Although Baker would in no event prevent the Supreme Court itself from revisiting the constitutional issues, the ability to declare Baker doctrinally undermined has positive repercussions for the social equality and lived reality of same-sex couples across the country in the mean time. Finally, Part IV of the Article addresses some of the ways in which United States v. Windsor itself developed constitutional doctrine in ways that advance the cause of constitutional justice and same-sex couples’ rights to equal protection and to marry.