Watch this. Then I’ll explain the case they’re talking about.
The case they’re discussing, Baker v. Nelson, is unusual (and disputed) as precedent, because the Supreme Court declined to take the case for want of a substantial federal question. New York Law School Professor Art Leonard says:
“Many lower federal courts have cited Baker v. Nelson as precluding any federal constitutional challenge to the exclusion of same-sex couples from marriage. In that case, a gay male couple in the early 1970s who were denied a marriage license in Minnesota sued the state on a federal constitutional due process and equal protection theory. They lost in the Minnesota Supreme Court and filed an appeal to the U.S. Supreme Court. At that time, the Supreme Court was required to consider such cases on direct appeal, but it used the device of dismissing the appeal ‘for want of a substantial federal question’ when the Justices felt the case had no merit. They dismissed the Baker appeal on this basis. This was before the modern gay rights movement really got going in the courts, before we won Romer v. Evans and Lawrence v. Texas, before the establishment of a growing body of case law protecting gay rights. Clearly, what was not a ‘substantial federal question’ in the 1970s is today a ‘substantial federal question.'”
In other words, whatever the Court would decide on the substance of the gay marriage issue today, it would likely start by dealing with, and disposing of Baker v. Nelson, because all would agree that the issue today does raise a substantial federal question. But will Sotomayor say that when she clarifies her remarks, as she’s promised to do? I doubt it.