Gay marriage activists and the liberal media are all a-twitter about the Supremes decision to hear the case on California Proposition 8, which prohibited same-sex marriage in the state of California. They are comparing this case to Brown v Board of Education Topeka (1954), Roe v Wade (1973), and especially Loving v Virginia (1967), which struck down state laws banning interracial marriage. What they are almost universally ignoring is a Supreme Court precedent specifically on the issue of gay marriage: Baker v Nelson (1972).
In 1970, two University of Minnesota students, Richard Baker and James Michael McConnell, applied for and were denied a marriage license in Hennepin County, Minnesota. The clerk, Gerald Nelson, specifically denied the application on the grounds that the applicants were both men. Baker sued Nelson claiming that his federal constitutional rights (1st, 8th, 9th and 14th amendments) had been violated. A Minnesota District Court ruled against the two men's claim and ordered the clerk to deny them a marriage license.
Baker appealed to the Minnesota Supreme Court, which upheld the lower court's decision and dismissed the claims based upon federal constitutional rights. Specifically, the Minnesota Supreme Court found that the Loving precedent 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."
Undeterred, Baker appealed to the U. S. Supreme Court, claiming violation of the two men's rights under the due process and equal protection clauses of the 14th Amendment and "privacy rights" found in the 9th Amendment. The case was brought to the Supreme Court under mandatory appellate review, not under a writ of certiorari. As a result, even though the Court did not grant oral arguments in the case, the decision issued by the court stands as precedent.
On Oct. 10, 1972, the Court issued a one sentence decision:
The appeal is dismissed for want of a substantial federal question.
Case closed. The identical set of justices who issued the Roe v Wade decision one year later found that there is no federal constitutional right to gay marriage. This is almost the same group of justices who had found in 1967 that state bans on interracial marriage were a violation of the constitutional rights of interracial couples.
There really is only one question before the Supreme Court on the issue of gay marriage in 2012: Does precedent matter? If it does, the Supreme Court will abide by the decision in Nelson v Baker and rule that their is no constitutional right to same-sex marriage. They will affirm the right of the citizens of California (and all other states) to prohibit same-sex marriage. And they will find that the Defense of Marriage Act is constitutional.