Talk:Baker v. Nelson/Archive 1

Archive 1

October 2005

The "decision" of the U.S. Supreme Court expressly states that the Court was declining to review this case. Therefore, there is no Supreme Court decision. Of course, this is a notable state supreme court case, and should remain in Wikipedia, but it is by no means a U.S. Supreme Court case any more than the 5,000 or so other appeals the Supremes decline to review each year.  BD2412 ^talk 02:56, 30 October 2005 (UTC)

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Wrong, this was not a simple denial of certiorari, which would not have any precedential value. The case was summarily affirmed.

Upon review, the United States Supreme Court dismissed the appeal "for want of [a] substantial federal question." 409 U.S. 810 (1972).

Examining Precedent of the United States Supreme Court shows the clear and explicit directive that dismissals "for want of a substantial federal question" are binding precedents on all lower Federal Courts.

"[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial". Hicks v. Miranda, 422 U.S. 332, 344 (1975)

"[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176 (1977).

Lower Federal Courts are expressely prohibited from ruling in a way inconsistant with binding precedent.

“[Summary Decisions] prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977)

This is explicit not only in the holdings of the United States Supreme Court, but also the holdings of other Circuit Courts.

[L]ower courts are bound by summary decision by this Court ‘until such time as the Court informs [them] that [they] are not. Doe v. Hodgson, 478 F.2d 537, 539 (2nd Cir. 1973)

Baker is binding precedent and until overruled by the United States Supreme Court, it remains that way.

I am simply amazed that someone who claims to be an attorney, doesn't understand the precedential value of a dismissal for want of a substantial federal question.

You may not like the fact that Baker is settled law, but not liking that fact does not reality change. :) —Preceding unsigned comment added by 208.11.188.26 (talk) 06:16, 7 December 2005

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BTW: Your Contention that Baker wasn't a decision on the merits is striking, especially considering that Judge Moody in Wilson V Ake stated expressly that Baker was a summary decision, and as such, binding. Judge Moody knows the difference between a denial of cert. and a dismissal for want of a substantial federal question.

Further, Justice Kennard of the California Supreme Court also denies your contention that Baker isn't an established decision of the SCOTUS.

"[I]ndeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. After the Minnesota Supreme Court held that Minnesota laws preventing marriages between persons of the same sex did not violate the equal protection or due process clauses of the United States Constitution (Baker v. Nelson (Minn. 1971) 191 N.W.2d 185), the decision was appealed to the United States Supreme Court, as federal law then permitted (see 28 U.S.C. former § 1257(2), 62 Stat. 929 as amended by 84 Stat. 590). The high court later dismissed that appeal “for want of substantial federal question.” (Baker v. Nelson (1972) 409 U.S. 810.) As the United States Supreme Court has explained, a dismissal on the ground that an appeal presents no substantial federal question is a decision on the merits of the case, establishing that the lower court’s decision on the issues of federal law was correct. (Mandel v. Bradley (1977) 432 U.S. 173, 176; Hicks v. Miranda (1975) 422 U.S. 332, 344.) Summary decisions of this kind “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” (Mandel v. Bradley, supra, at p. 176.) Thus, the high court’s summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution. The binding force of a summary decision on the merits continues until the high court instructs otherwise. (Hicks v. Miranda, supra, 422 U.S. at p. 344.) That court may release lower courts from the binding effect of one of its decisions on the merits either by expressly overruling that decision or through “ ‘doctrinal developments’ ” that are necessarily incompatible with that decision. (Id. at p. 344.) The United States Supreme Court has not expressly overruled Baker v. Nelson, supra, 409 U.S. 810, nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision... Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry." Lockyer V San Francisco (Kennard, J. Concurring and Dissenting) (Emphasis Added.) —Preceding unsigned comment added by 208.11.188.26 (talk) 07:01, 7 December 2005

Ok. bd2412 T 01:44, 16 December 2005 (UTC)

I don't understand something: Doesn't the issue of whether or not a State law violates the Constitution of the United States qualify as a Federal Question? How can that issue not automatically constitute a Federal Question? (I graduated law school, but am not a practicing attorney). 66.108.105.21 16:58, 26 September 2006 (UTC)

March 2007

I removed POV Commentary that doesn't pass legal muster. Baker is binding precedent. Court after Court has ruled such. The case law on Summary Decisions (Appeals dismissed for want of a Substantial Federal Question) is solid and clearly established. Those who favor Same-Sex Marriage may not like Baker, but it remains law UNLESS it's overruled. Ghostmonkey57 01:37, 18 March 2007 (UTC)Ghostmonkey57

The previous edit was removed as it was legally inaccurate. A summary decision IS a decision on the merits and DOES establish FEDERAL precedent. The MA and CA decisions were decided on the basis of the STATE Constitutions. For purposes of the FEDERAL CONSTITUTION Baker v. Nelson is binding. A dismissal for want of a substantial federal question IS NOT merely a decision not to hear a case. IT IS A DECISION ON THE MERITS. Ghostmonkey57 (talk) 07:05, 24 August 2008 (UTC)Ghostmonkey57

How could that decision be reversed, would an appeal have to be made directly to the Supreme Court to allow a lower court to hear a challenge?--Occono (talk) 18:31, 1 May 2009 (UTC)

Precedent

I reverted a series of edits that are in direct conflict with established case law. The United States Supreme Court has specifically ruled that "a dismissal for want of a substantial federal question" is a decision on the merits. It has been explicitly recognized as precedential time and time again. There is no debating this point. Many individuals confuse a refusal to grant Certiorari with "a dismissal for want of a substantial federal question." The former IS NOT precedential and does not reach the merits of a case. The later IS precedential and constitutes a decision on the merits. While only a summary decision, Baker falls in the later category, and it's binding effect has been noted by several lower Courts. One might not agree with Baker, but only the Supreme Court can overrule it. Ghostmonkey57 (talk) 07:50, 23 July 2009 (UTC)

Binding Precedent

There are no "assertions" here. Baker is the controlling Federal Precedent on this issue until it is over-ruled by the Supreme Court. A "dismissal for want of a substantial federal question" is a decision on the merits that is binding on all lower Federal Courts as per Mandel v. Bradley and Hicks v. Miranda. Baker's Precedental value has been noted by numerous courts that have considered this issue. ALL of this is cited and backed up with VERBATIM quotes from the various decisions. I understand that many don't like Baker, but until it is over-ruled, it is the law of the land. Even the Obama administration brief acknowledged that Baker was controlling, as it pertains to the FEDERAL Constitution. State Courts can come to a different conclusion based on a State Constitution, but in interpreting the Federal Constitution on this issue, Baker is the law. Ghostmonkey57 (talk) 03:36, 17 October 2009 (UTC)

The problem is that several courts disagree with you -- see the cases discussed below. SCOTUS has not addressed the question of just how binding Baker truely is. Different courts have come to different conclusions. Therefore, it's an open question. To say otherwise in the main article is inaccurate, argumentative, and does not represent a neutral point of view. It represents the point of view that you, Ghostmonkey57, want to advance. That's not what wikipedia is about. I intend to restore the version that establishes the uncertainty of Baker as binding precedent, until and unless the uncertainty is resolved -- either by unanimity in the lower courts (not bloody likely) or SCOTUS pronouncement (also not likely, because any SCOTUS decision will be on the merits and may not even address Baker. Jim Simmons (talk) 15:38, 31 August 2010 (UTC)

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Whether people like Baker or not is beside the point. The problem with this article is that it is not an appropriate treatment for an encyclopedia (WP:NOT).

AGREEMENT

Let's start with our common ground. I agree that the Baker decision has precedential value. Summary disposition of a mandatory appeal was a decision on the merits (before 1988 when Congress made these reviews discretionary).

Indeed, I left intact most of the sentence to that effect in the lead paragraph: "That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent." Obviously, that's not the problem.

DISPUTE

Where the article clearly strays into a soapbox is in sweeping assertions about the extent of Baker's present day effect, such as "controlling precedent as a matter of federal constitutional law on the issue of same-sex marriage."

Certainly, the article contains ample quotations from judges commenting on Baker's continuing effect. At first, I considered simply adding more material (contrary opinions of judges).

At a mechanic level, however, this article spends a scant 500 words discussing Baker proper. In fact, barely 50 words go to what was argued and decided in Minnesota.

Contrast that with nearly 3,000 words (WP:WEIGHT) whose sole purpose to buttress the proposition that Baker controls "as a matter of federal constitutional law on the issue of same-sex marriage." (A passage I deleted.) If that is an uncontroversial assertion, the article could sufficiently canvass the point in about 100 words. Anything more than about 500 words (roughly equal in length to the encyclopedic core of the article) suggests either pointless repetition or a controversy that the article attempts to mask.

As it happens, this is not an uncontroversial assertion. In all but one case mentioned in the article (the only exception is where the reference to Baker was merely in passing), I could easily add quotes from other judges (typically those writing the majority/plurality opinion) that are in opposition to the material presented (WP:NPOV). Similarly, I could add contrarian trial-level opinions.

For the time being, I've refrained from further bloating this article. This article's untoward reliance on primary sources ("it is easy to misuse them") is no doubt the root of the problem.

PROPOSAL

First, I think we need to tee up the ways in which this form of precedential application works. That's not very controversial, although it is more complicated than the current treatment suggests. This will be necessarily brief, as a more expansive discussion would probably stray into a coatrak.

Then, I'll take a crack at winnowing down the amount of material presented on the extent of Baker's force in the present day. It will present the issue as a contested question, with a sampling of opinions on the (three) sides. I'll post a proposal here for you and others to comment on before changing the article. If you have any particular favorites among the current quotes, please let me know. I'll make a point of including those.

Lastly, there a few passages that someone made up of whole cloth. For example, the In re: Kandu discussion makes this unattributed claim: "The court instead believed Baker to only have precedential value when a same-sex couple challenged a state's decision not to issue a marriage license under its own state law." Not surprisingly, this bankruptcy judge didn't stray into that question (which was not before him, and if it were, it is not within that court's subject-matter jurisdiction). The handful of exceptionally dubious claims just need to go, unless someone's prepared to source them properly.

POLEMICS

I'm happy to debate the merits of Baker's continuing validity with you. Even I agree it has some life left in it. But, neither my opinion nor yours is relevant to the process of editing a Wikipedia article (WP:NOR). Feel free to suggest some other forum for that debate.

Wonderbreadsf (talk) 20:14, 17 October 2009 (UTC)

Here's the problem, Mandel and Hicks clearly outline that summary decisions are in fact decisions on the merits that are binding on all lower FEDERAL courts. The only possible claim to the contrary on this issue is that the subsequent decisions of SCOTUS in Romer & Lawrence somehow undermined Baker to the point that it is not longer binding. This seems to be the direction that you want to go. There is just one problem, the FEDERAL courts that have examined Baker have found it to be CONTROLLING.

Baker has far more history than you seem to want to admit. It was positively examined in the following cases

Wilson v. Ake, 354 F.Supp.2d 1298, 1304+, 18 Fla. L. Weekly Fed. D 175, 175+, 1 A.L.R. Fed. 2d 611, 611+ (M.D.Fla. Jan 19, 2005) (NO. 8:04-CV-1680-T-30TBM) HN: 2 (N.W.2d)

Wilson v. Ake, 2004 WL 3142528, *3+ (M.D.Fla. Jul 20, 2004) (NO. 8:04-CV-1680-T-30TBM) HN: 1,2 (N.W.2d)

McConnell v. U.S., 2005 WL 19458, *1+, 95 A.F.T.R.2d 2005-568, 2005-568+ (D.Minn. Jan 03, 2005) (NO. CIV.04-2711 JNE/JGL)

Morrison v. Sadler, 821 N.E.2d 15, 19+ (Ind.App. Jan 20, 2005) (NO. 49A02-0305-CV-447)

Lilly v. City of Minneapolis, 1994 WL 315620, *2+ (Minn.Dist.Ct. Jun 03, 1994) (NO. MC 93-21375)

Lewis v. Harris, 2003 WL 23191114, *8+ (N.J.Super.L. Nov 05, 2003) (NO. MER-L-15-03)

The only negative history that you can cite in support of your position, is the dicta in Smelt v. County of Orange, 374 F.Supp.2d 861, 867+ (C.D.Cal. Jun 16, 2005) (NO. SACV04-1042-GLT(MLGX) HN: 1,2 (N.W.2d). The judge in that case disagreed with the finding in Wilson v. Ake. However, the judge did not contend that Baker wasn't binding as it pertains the matters of the Federal Constitution. Instead, he attempted to distinguish DOMA as being outside the Jurisdictional Statement in Baker. Even he admits that Baker is Binding as it pertains to challenges to state law prohibiting same-sex marriages. He merely contends that it was not binding precedent on same-sex couple's constitutional challenge to the section of federal Defense of Marriage Act (DOMA) defining "marriage" as a legal union between one man and one woman. Here's the kicker though, not only was this portion of his decision Dicta, (unlike the the holding in Wilson v. Ake) Smelt was vacated and remanded on everything other than the issues of Standing (which were affirmed) thus, his opinion holds absolutely no weight on this issue. Whereas Wilson v. Ake does.

[B]oth the lower court and the Appellate Division in Cooper relied on Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), [FN18] which only addressed whether the Minnesota domestic relations laws violated the [b]United States Constitution[/b]. Here, because plaintiffs have raised [b]State[/b] constitutional claims, as discussed below, New York law requires an independent analysis of [b]State[/b] constitutional provisions.

As Justice Kennard explained in her opinion, Baker controls on this issue as it pertains to the FEDERAL Constitution, but various State provisions may compel a different result. Indeed, every case that has been decided in favor of same-sex marriage has been decided on STATE Constitutional grounds. Why? Because Baker is still the law as it pertains to the FEDERAL Constitution.

With this in mind, what is it that you are seeking to accomplish? You conceded from the outset that Baker is a binding precedent. You apparently recognize that a "dismissal for want of a substantial federal question" does indeed constitute a decision on the merits that is binding on lower Federal Courts. Do you want to scrub to article to remove that impression? If so, why? You concede that Baker is precedent, but you appear to want to minimize this fact. Again, Why? What are you seeking to accomplish?

I understand that many individuals do not like the fact that Baker is the current law of the land. I also understand that its precedental value is difficult to comprehend as it was only a summary disposition. However, the fact remains that Baker does exist and until it is overruled, it binds the lower Federal Courts.

I'll take special exception to this particular contention that you have: "I could easily add quotes from other judges (typically those writing the majority/plurality opinion) that are in opposition to the material presented (WP:NPOV). Similarly, I could add contrarian trial-level opinions."

The fact is, you can do no such thing, because the various same-sex marriage cases that were decided in favor of same-sex couples, were decided on STATE Constitutional provisions rather than the FEDERAL Constitution.

We need to start with what exactly that it is that you are trying to accomplish. Let's get on the same page there first. Is Baker binding or not? If yes, Why? If not, Why not? Reference authority that supports your position. From there we can discuss and rework the article Ghostmonkey57 (talk) 00:29, 18 October 2009 (UTC)

I'll renew my invitation to debate the merits and import of Baker with you, but you need to find a more appropriate forum. Our opinions on those questions aren't relevant to this article.

As for what I'm trying to accomplish with the article, my concerns are both stylistic and substantive.

General Principles for Encyclopedic Articles That Need Addressing

1. The individual quotes re: precedent and its interpretation are too long.
2. The quotes lack useful context (e.g., what was the court actually dealing when it uttered these words).
3. The discussion of the precedents is too long (whether or not it's quoted material). The article attempts to make a single point. It shouldn't require almost 3,000 words to make that point.
4. Too much reliance on primary sources (admittedly, I have yet to do much to improve that).

Point of View Issues

The extant article is, at best, misleading. The article repeatedly asserts that Baker controls federal jurisprudence on the "issue of same-sex marriage." To the layperson, that suggests that Baker has decided pretty much any federal claim that involves same-sex marriage. That is much too broad an assertion.

Likewise, the article cites only from passages that support this sweeping proposition (Baker controls for all federal purposes). Of course, some judges assert just that. They're well represented here. What are missing are judges' opinions to the contrary.

Furthering this Discussion

To give you something more concrete to critique, I've included below a very rough draft to replace sections 3 & 4 of the article. N.B. this needs a decent copy edit, has some stylistic/formatting issues, and the references are either incomplete or absent altogether. I'll certainly tend to those issues (and welcome yours or anyone else's assistance).

I started the draft with most of appellate decisions that were in the article. Feel free to nominate your favorites in lieu of this selection. I haven't included any of the trial court decisions yet. I don't object including a couple of those. I am loathe, however, to attempt to canvass every opinion. That will simply blimp up the article in precisely the way that the Wikipedia guidelines discourage. Let's try to focus on a reasonable sampling of opinions. Perhaps five or six cases that give a overview of how courts deal with Baker.

Also, I rendered the framework for applying this sort of precedent in four declarative sentences. (The current article goes on in much greater length.) I did include a few quotations in the footnotes. Frankly, the framework is well established, so it seemed uncontentious enough to describe briefly, cite well, and move on to what that framework means to the Baker precedent.

Wonderbreadsf (talk) 19:13, 18 October 2009 (UTC)

Draft Proposal

Below is a very rough draft rewrite of sections 3 & 4 of the current article. Needs lots of clean up before seeing the light of day (please jump in). See discussion above for background. Wonderbreadsf (talk) 19:17, 18 October 2009 (UTC)

UPDATE: I've been cleaning up the first few paragraphs below (less so the litany of quotes that are the bulk of material). In the process, I've deliberately taken the references beyond what's probably called for. If we can agree that any of these passages don't require the extensive quotes/paraphrases, I'd love to trim back on the volume of words in the references. Wonderbreadsf (talk) 01:35, 30 October 2009 (UTC)

Decision in the U.S. Supreme Court

Baker and McConnell appealed the Minnesota court's decision to the U.S. Supreme Court. There, they claimed the Minnesota marriage statutes abridged their fundamental right to marry under the Fourteenth Amendment's Due Process Clause, discriminated based on gender contrary to the Equal Protection Clause (also Fourteenth Amendment), and deprived them of privacy rights flowing from the Ninth Amendment. On October 10, 1972, the U.S. Supreme Court issued a one-sentence order dismissing the case "for want of a substantial federal question."

In most cases presented to the U.S. Supreme Court, the court's refusal to hear the case is not an endorsement of the decision below. Because this case came to the court through mandatory appellate review, the summary dismissal is a decision on the merits of the case. As binding precedent, the Baker decision prevents lower courts from coming to a contrary conclusion when presented with the precise issues the court necessarily considered in dismissing the case.

Application of the Baker precedent

When dealing with precedents like Baker, lower courts may have to guess at the meaning of these unexplained decisions. The Supreme Court has laid out rules, however, to guide lower courts in narrowly applying these summary dispositions:

• The facts in the potentially binding case must not bear any legally significant differences to the case under consideration.
• The binding precedent encompasses only the issues presented to the Court, not the reasoning found in the lower court's decision.
• Of the issues presented, only those necessarily decided by the Court in dismissing the case control.
• Subsequent developments by the Court on the relevant doctrines may cast doubt on the continuing validity of a summary judgment.

Baker in federal courts

In applying the guidelines for summary dispositions, federal judges have come to differing conclusions on where and how Baker controls.

Citizens For Equal Protection v. Bruning, U.S. Court of Appeals, Eighth Circuit (2006)

The U.S. Court of Appeals for the Eighth Circuit rejected the claim of a Nebraska citizen organization that the state constitutional amendment banning same-sex marriage offended the U.S. Constitution's Equal Protection Clause, among other provisions. While Baker did not appear in the court's analysis of the decision below, the court's opinion did note in its concluding passage:

Indeed, in Baker v. Nelson, when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." There is good reason for this restraint.

(emphasis added in the Bruning opinion, citations omitted.)

Wilson v. Ake, U.S. District Court (2005)

Two Florida women who married in Massachusetts claimed that Florida's marriage statutes and the federal Defense of Marriage Act (DOMA) violated the due process and equal protection guarantees of the Fourteenth Amendment (and implicitly the Fifth Amendment), among other claims. The judge dismissed the claims against the U.S. Attorney General, in part, because Baker controlled; "The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today."

In re Kandu, U.S. Bankruptcy Court (2004)

Lee and Ann Kandu, Washington residents, were married in British Columbia. They jointly filed for bankruptcy protection. Kandu claimed, among other things, that the portion of the federal Defense of Marriage Act (DOMA) that precluded the bankruptcy court from allowing a joint proceeding violated due-process and equal-protection principles under the Fifth Amendment. The court concluded that Baker did not control. Among the distinguishing features the court noted were the dissimilarity between state laws governing marriage licenses in Baker and the federal DOMA and bankruptcy code in this case as well as the possibility that the Supreme Court's decision in Lawrence v. Texas (striking down Texas' [[Sodomy law|sodomy statute]) marked a shift in the Court's "analysis of same-sex conduct."

Baker in state courts

In state courts, the relevance of a precedent like Baker partly depends on what claims the litigants make. If the litigants claim protection of the U.S Constitution, a U.S. Supreme Court precedent may control the outcome of those claims. If the claims arise under state constitutional provisions, federal precedents may not matter. There are some state courts, however, that treat provisions of their constitution in the same way as the federal courts treat the analogous portion of the U.S. Constitution. In these circumstances, precedents like Baker may control state constitutional analysis.

Morrison v. Sandler, Indiana Court of Appeals (2005)

The Indiana Court of Appeals upheld the dismissal of a case brought by several same-sex couples who challenged Indiana's marriage statutes. On appeal, the couples claimed that the statute violated several provisions of the Indiana Constitution, principally the Equal Privileges and Immunities Clause (Article 1 § 23). The majority opinion (Barnes, J.) concluded its description of Baker with:

"Thus, the Supreme Court, five years after it decided Loving, determined that that case did not support an argument by same-sex couples that precluding them from marrying violated the Fourteenth Amendment. In light of this precedent, the Plaintiffs have not made a Fourteenth Amendment argument in this case."

Hernandez v. Robles, New York Court of Appeals (2004)

The New York Court of Appeals (the state's highest court) rejected claims by same-sex couples that the state's marriage laws were offensive to the state constitution's Due Process and Equal Protection clauses. New York courts treat their Equal Protection Clause as no broader in scope than its federal counterpart.

Plurality Opinion (Smith, R.S., J.) "We find no inconsistency that is significant in this case between our due process and equal protection decisions and the Supreme Court's. No precedent answers for us the question we face today; we reject defendants' argument that the Supreme Court's ruling without opinion in Baker v Nelson bars us from considering plaintiffs' equal protection claims." (citations omitted.)

Separate Opinion (Graffeo, J., concurring), footnote 4 ends a survey of the Baker precedent with: "Thus, with respect to the Federal Due Process Clause, we must presume that Loving did not expand the fundamental right to marry in the manner suggested by plaintiffs in the cases before us. This observation does not, however, preclude this Court from interpreting the New York State Due Process Clause more expansively." (citations omitted.)

Proposed Draft: Discussion

I am not opposed to your format. In fact, it looks much nicer than the article as written. However, There are serious problems with the article as written. It is a fringe proposition that Baker has no value whatsoever as precedent. Yet this is exactly the position that many lay people take regarding Baker. Most individuals without training in the law automatically assume that since there wasn't a full decision on the merits, then Baker isn't controlling AT ALL. Many GLBT activists without legal training advance this same proposition, because they fail to recognize that a summary disposition is different than a denial of Certiorari. I am not asserting that you believe this fringe position. However, I am concerned that a lay reader will make this interpretation with the article as written. We need to expand the explanation of the significance of the summary disposition.

2. The MINORITY position is that Baker is so narrow that it only controls in very limited instances. Those instances are limited solely to Federal Challenges to State marriage provisions under the 14th Amendment's Due Process and Equal Protection Clauses.

3. The MAJORITY position, (which includes the position asserted by both the Obama administration and the Bush administration in their defenses of the Federal DOMA, and which includes the only FEDERAL Court holding on this issue) is that Baker controls not only on Federal Constitutional Claims against State-Level Marriage Law, but that it is also controlling as it applies to DOMA as well. I noted that you completely eliminated any reference to Wilson v. Ake, which is the only Federal Court opinion in this area that still holds any real weight, as Smelt v. Orange was vacated and remanded.

4. BOTH the Minority position and the Majority position agree that Baker is certainly controlling in so far as it relates to the Due Process and Equal Protection claims against State marriage laws that limit marriage to one man and one woman. There is unanimous agreement on this point, even from the judges that held that Baker wasn't controlling on DOMA. All agree that Baker does control at least so far as it relates to the specific issues in the jurisdictional Statement that was presented before the Court. This includes 14th Amendment Due Process and Equal Protection Claims. The only divergence is whether Baker is broad enough to cover DOMA. The State cases that have refused to rely on Baker, did so on STATE Constitutional grounds. All seemed to be convinced that Baker did control in regards to the Federal Constitution's Equal Protection and Due Process Claims.

5. This being the case, the WP:Weight of this article must be reflective of the Majority position. You cannot re-write the article in such a way that makes the Fringe position seem viable, or the Minority position to be controlling. Ghostmonkey57 (talk) 03:59, 19 October 2009 (UTC)

Thanks for the comment on the presentation. Readability matters (and suggestions along those lines are most welcome... and seldom contentious).

PRECEDENT OR NOT?

Frankly, I don’t see any equivocation in the article that Baker is precedent:

• The lead paragraph ends with an unequivocal assertion that Baker is "controlling precedent." (That assertion really needs to be there as many people won’t read much beyond that point; I didn’t include the lead here, because my concerns are focused in sections 3-4.)
• The discussion of what happened at the U.S. Supreme Court spends twice as many words explaining in unambiguous terms that this is a precedent than it spends recounting the passage through the court. Indeed, the last two sentences exist only to say the same thing three different ways: "decision on the merits," "binding precedent," and "prevents lower courts from coming to a contrary decision."
• In the first draft, I changed the subhead on the section about applying Baker from "Precedential Value of Baker v. Nelson" to "Applying the Baker Precedent," because I believed it more directly convened precisely the point we agree on here. (In fact, I think I’ll change the subhead on section three to "Review Decision in the United State Supreme Court"; subheads speak louder than a mountain of prose).

The bulk of this article is the section 4, which takes as its entire premise that Baker is precedent. If people read this far and haven’t absorbed this simple fact, I think the problem has more to do with reading comprehension than anything the article does or does not say.

Regardless, I’ll sprinkle a couple more instances of the word "precedent" into section 4. Feel free to add another sentence somewhere to drive the point home. I think that doing much more than this borders on the gratuitous. But you’re certainly free to add whatever you think is appropriate.

WEIGHT: Trial Court Decisions

As I noted in my preface to the first draft, I’m not at all adverse to including a couple of trial court decisions. I simply started with some appellate ones, which have their own precedential value. If you think they’d help balance things, I’ll add the two trial courts decisions that exist in the extant article.

WEIGHT: What’s the Prevailing/Minority/Fringe Position?

The question of how much weight to give the various opinions is harder to come to agreement on because they necessarily involve our (disparate) opinions about majority, minority, and fringe cases. Frankly, our opinions don’t much matter. Where a disagreement on this kind of question exists, we need to resort to verifiable secondary sources--there’s a dearth of those on this exact issue.

Let me describe what I did. Please suggest some concrete and sensible improvement.

I took four of the appellate decisions (particularly including the only decision from a Circuit Court) that were in the article. To that I added the majority/plurality opinion from the two state high court decisions that were in the four. My rational was simple: if a separate concurring opinion is of sufficient import to merit quotation, surely the controlling opinion was too.

In my two additions, we find two distinct views. In the first case (Lockyer), the majority recognized a colorable dispute, but felt that the court need not address the Baker issue. In the other case (Hernandez), the plurality opinion stands in opposition to your position. Note that I didn’t lead with that case; I put it third of four.

I don’t think that keeping score of how many quotations are in these articles is an especially useful or reliable way to achieve balance. But to remove the only case I added that stands in opposition to your opinion would bring us back to ZERO cases in opposition. As I said at the outset, that isn’t balance. That’s not a viable solution.

If moving Hernandez to the fourth slot would help, I certainly don’t object. You note there are "serious problems" here. What do you propose to remedy those? Wonderbreadsf (talk) 23:10, 19 October 2009 (UTC)

Hernandez didn't hold a contrary position on Baker. The Plurality didn't decide the case under the Federal Constitution's Equal Protection provisions, instead, they decided the case under the New York STATE Due Process & Equal Protection provisions. While it is true that under New York precedent, the New York Due Process & Equal Protection Provisions grant the same protections as the Federal Constitution, it doesn't necessarily follow that Baker would be controlling in that regard under New York law because the New York Court of Appeals could always go further than the Federal Constitution requires. Hence, the Plurality's position is not inconsistent with the premise that Baker controls for all FEDERAL purposes. Hernandez was ultimately a State case, the Plurality merely stated that Baker didn't restrict them since they were deciding the case on STATE grounds. Even the concurring judge agreed with the Plurality on this: "Thus, with respect to the Federal Due Process Clause, we must presume that Loving did not expand the fundamental right to marry in the manner suggested by plaintiffs in the cases before us. This observation does not, however, preclude this Court from interpreting the New York State Due Process Clause more expansively." Accordingly, Hernandez is not an example of a case that attempted to limit Baker at all. The only case that you could potentially cite in that regard is Smelt, and it was vacated and remanded, and thus holds no weight at all Ghostmonkey57 (talk) 11:17, 20 October 2009 (UTC)

Again, we disagree in the legal details. To what end? You've contributed a mountain of unsubstantiated legal opinions. That isn't getting us any further in improving the article.

You're making only general objections ("serious problems") about the article. That leaves me in the untenable position of trying to imagine how you think the article can be improved.

I welcome your specific and actionable suggestions on the proposed draft article (even better, jump right in and start editing). Cheers Wonderbreadsf (talk) 16:59, 20 October 2009 (UTC)

I am not sure what there is to disagree about. Hernandez was decided on State grounds, not Federal grounds. That's not an opinion, that's a fact. Baker binds for purposes of FEDERAL law, but it doesn't prevent States from going beyond the protections granted by the Federal Constitution. Hence the decisions in CA, MA, IA and MA. The Hernandez plurality disagreed that Baker controlled for State purposes as well as Federal purposes. They spell it out right their in the opinion. Both the plurality and the concurrence agreed on that point.

I've been addressing specific points in your edit. But if you like, I'll use your template as a draft and work something up. Give me a little bit and I am sure that we can come up with something that will work. Ghostmonkey57 (talk) 21:14, 20 October 2009 (UTC)

OK, I've been gather references over the past few days. I think that what we need to do, is figure out a way to lay out the distinction between State and Federal Law, and explain how Baker can bind one and not the other. Ghostmonkey57 (talk) 20:38, 27 October 2009 (UTC)

State vs. federal analysis would certainly be a useful addition. One needs to use some caution in treating the topic generally. E.g, some state courts treat some of their constitution's provisions in lockstep with their federal counterparts. The same state may treat other provisions (that have federal counterparts) with ample independent vitality. There are, of course, all kinds of variations between those two extremes (interstitial, dual analysis, etc.). Broad generalizations about state constitutional analysis could be misleading here, but getting too detailed may take us off into the weeds. Please try to strike a sensible balance.

That said, my primary complaint with the substance of the article is that it asserts the application of the Baker is settled law and sweeps broadly. I hope you've found some useful sources to narrow our differences there. Cheers Wonderbreadsf (talk) 16:44, 28 October 2009 (UTC)

P.S. That was me who just added the citation/source/dubious tags to the live article (forgot to login first). Wonderbreadsf (talk) 20:50, 30 October 2009 (UTC)

OK, Let's use your template but let's decide on what cases we are going to include here that demonstrate precedent. I think we can split the article into two sections here, one for Federal Cases that applied Baker, and one for State cases that applied Baker. There really are only three Federal Cases on point, In Re Kandu, Wilson v. Ake and Citizens For Equal Protection v. Bruning. Smelt was reversed and remanded and can't be cited for precedent (even persuasive precedent). Then we can examine the State cases that applied Baker. That would show the distinction and perhaps clarify and narrow the application of Baker. What do you think? Ghostmonkey57 (talk) 01:58, 31 October 2009 (UTC)

Splitting up the cases by federal/state courts makes a lot of sense. I think your choice of cases is clearly the best sampling. I'll give that a go (but again, you're welcome to jump in and edit too).

P.S.: I note, only for future reference, that my disinterest in Smelt is largely practical (I prefer to trim this portion of the article down a good bit). Despite what law schools tend to teach (I assume they still do), I don't think vacatur is quite what it used to be. Indeed, vacated opinions seem to be joining the ranks of dicta as perfectly plausible sources for persuasive precedent (although "vac'd on other grounds" doesn't yet reach as far as dicta, which can be binding precedent). These may not be healthy developments. From a purely descriptive point of view, however, whether some utterance is persuasive precedent to the federal courts is largely a function of how well stated the proposition is.

Should someone want to include Smelt, I'd argue against it from a more editorial than legal perspective. Even if the article weren't so long already, adding Smelt would upset the careful balance in your recommendation. One could remedy that by replacing one of the cases (presumably Kandu), but we can avoid the whole vacatur debate by leaving things alone. Smelt doesn't state its holding much differently than Kandu, and there's a much stronger interplay between the Wilson opinion and Kandu than with Smelt (that isn't apparent from the quoted material; but for those who choose to read the opinions, that dialog is very illuminating).

Wonderbreadsf (talk) 17:42, 31 October 2009 (UTC)

I took a quick whack at putting the three federal cases in the draft proposal. In Wilson, I had written that Baker controlled the Fifth Amendment claims, but then I went to cite it. Strangely, I couldn't find anywhere in the opinion where the judge said what exactly Baker controlled (obviously, I think I know what the judge was saying, but he didn't to come out and say it). Take a quick look at that section of the opinion and let me know if you can find an appropriate citation for what Baker controlled in that case. CAUTION: Do not, under any circumstances read the complaint in Wilson. I started into it to see if it would shed any light on the decision. By the fourth page, I just couldn't stand to read any more of it. Wonderbreadsf (talk) 00:52, 1 November 2009 (UTC)

The judge said that the 5th Amendment Claims were never actually raised. (The 5th Amendment binds the Federal Government, the 14th Amendment Binds the States.) The lawyer who filed this case improperly attempted to apply the 14th Amendment Due Process Clause to the Federal Government. As for Baker, here is the appropriate section:

Although Baker v. Nelson is over thirty (30) years old, the decision addressed the

same issues presented in this action and this Court is bound to follow the Supreme Court’s decision. See Hicks, 422 U.S. at 344-45 (“lower courts are bound by summary decision by this Court ‘until such time as the Court informs (them) that (they) are not.”)(quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)); see also McConnell v. Nooner, 547 F.2d 54, 55-56 (8th Cir. 1976); Adams v. Howerton, 486 F.Supp. 1119, 1124 (C.D.Cal. 1980), aff’d 673 F.2d 1036, 1039 n.2 (9th Cir. 1982). The Supreme Court’s holding in Lawrence does not alter the dispositive effect of Baker. See Agostini v. Felton, 521 U.S. 203, 207 (1997) (“The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this 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 decision.). The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today.8 Accordingly, Baker v. Nelson is binding precedent upon this Court and Plaintiffs’ case against Attorney General Ashcroft must be dismissed.Ghostmonkey57 (talk) 14:15, 2 November 2009 (UTC)

Yeah, I saw the bits construing the Fourteenth Amendment claims as Fifth for Ashcroft's purposes. I had dealt with that in a footnote. What I was struggling with was finding a clear statement by the judge of which claims Baker foreclosed. I don't see such a statement in the material you quoted. Structurally, the order first disposes of the Full Faith and Credit claim (in the obvious conventional analysis . . no mention of Baker yet; this section concludes with a clear holding: the Plaintiff's claim conflicts with "Florida's legitimate public policy"). The next section is Baker as a precedent, which concludes with the material you quoted here. Nothing that preceded the holding (and dismissal of Ashcroft as a defendant) really said which claims Baker controlled. (Weirder still, the order then continues on through a rational-basis review of the Fifth Amendment ... seems a little superfluous after you've dismissed the claims against the movant.)

I think that the safest (non synthesizing) route is to move the quote from the footnote into the main text and just leave it at that. Holler if you've got a better solution. Wonderbreadsf (talk) 17:19, 2 November 2009 (UTC)

Later today, I'm going to start moving the draft we've been discussing here into the article proper. I've thus far included only two of the state court decisions (Indiana and New York). The rest strike me as repetitions of those two. But, your mileage may vary, so feel free to chime in. Cheers Wonderbreadsf (talk) 18:00, 4 November 2009 (UTC)

Why "Obama Administration Brief"?

I'm struggling to understand why the DoJ's brief in Smelt II merits mention here. As a general rule, I find it questionable to draw from litigants' pleadings (other than the parties in the case being discussed in the article). Given that all of the defendants have now been dismissed from the case (on jurisdictional grounds), we won't have an occasion to see what the court thought of this argument. I recommend deleting this section. Wonderbreadsf (talk) 23:51, 7 November 2009 (UTC)

I've been away for a while. I like many of your changes. Beyond a few minor modifications, it looks really good. However, on this point, I think the brief is important. First, it laid out a very clear synopsis of what the current administration thinks as to the precedential value of Baker. Second, as the administration is probably against the position substantively, it shows a deal of intellectual honesty. Third, the brief was very clear and concise in relaying the substance of Baker. We might be able to trim it down, but I don't think deleting it is a viable option. Ghostmonkey57 (talk) 15:49, 13 November 2009 (UTC)

Welcome back. Hope all is well. I still have misgivings about holding up briefs/memos from one party or another as anything more than an advocate making out any colorable claim. That's what they're supposed to do on behalf of their clients. That said, why don't you see if you can find some language from a case that still has life in it. I think that both Gill v. OPM and Commonwealth v. HHS now have motions to dismiss before the court. I presume the DoJ used similar language re Baker in those cases. If we introduce the quote with sufficient care I won't hold things up. Wonderbreadsf (talk) 17:26, 14 November 2009 (UTC)

Sonya Sotomayor

I removed that section because it does not seem relevant to the article —Preceding unsigned comment added by 76.229.231.30 (talk) 00:32, 6 June 2010 (UTC)