June 22, 2012
By Jacob Combs
Last month, Nevada Governor Brian Sandoval filed a motion to dismiss in the marriage equality lawsuit Sevcik v. Sandoval, which challenges the constitutionality of Nevada’s policy of offering domestic partnerships, but not full marriage rights, to gay and lesbian couples. In his brief, Gov. Sandoval argued that Baker v. Nelson, a 40-year old decision in which the Supreme Court summarily dismissed a challenge by two Minnesota men seeking to marry, is controlling precedent and makes the equal protection charges in the Sevcik case moot. In responses, the plaintiffs filed a brief arguing that Sevcik presents entirely different questions from Baker and that subsequent doctrinal developments merit consideration of a new marriage case in the state.
Yesterday, Gov. Sandoval filed his own reply to the plaintiff’s brief arguing that Baker should be considered controlling precedent by the Nevada court. In his brief, Sandoval cites the First Circuit’s recent ruling in the Massachusetts DOMA case that Baker “limit[s] the arguments to ones that do not presume or rest on a constitutional right to same-sex marriage. The Nevada court, of course, is not bound by First Circuit precedent, but rather by Ninth Circuit precedent, and Sandoval also addresses the plaintiffs’ contention that the Ninth Circuit’s argument in the Prop 8 case (Perry v. Brown) declining to be bound by Baker should be a controlling precedent in the Sevcik case. Sandoval argues that the Ninth Circuit’s reasoning specifically cited the fact that California had extended marriage rights and then took them away, which is not the case in Nevada, so the Perry court’s rejection of Baker should not hold in Sevcik.
The Baker question is an important one, and one in which the correct path forward for lower courts is admittedly a bit fuzzy. Lower courts are bound by Supreme Court decisions (including summary dismissals) unless there have been significant legal and doctrinal changes in the intervening years that make it difficult to apply old legal logic to a new reality. The argument that the Sevcik plaintiffs (and many other plaintiffs seeking marriage equality) make is that much has changed since Baker. For instance, Baker was decided when sodomy was still criminalized in many states (including Minnesota, the state in question in the suit), and before the landmark Supreme Court case Romer v. Evans, which struck down a law that would have excluded gays and lesbians from legal protections.
Arguing against this idea, though, Sandoval cites Rodriguez de Quijas v. Shearson/American Express: “If a precedent of this Court [the Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” As is so often the case in law, the extent to which one follows the Rodriguez standard depends on how one interprets the words “direct application.” So far, the vast majority of lower courts have refused to dismiss marriage equality lawsuits based on Baker. Still, it’s high time for the Supreme Court to explicitly disavow that Baker still holds any precedent in today’s LGBT legal discourse.
Gov. Sandoval’s brief, via Scribd (h/t to Kathleen):