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Applying 'Brady Bunch' era precedent (?) in a 'Modern Family' world

by Jeremy Hooper

I am so tired of social conservatives bringing up Baker v. Nelson as if nothing has changed in the subsequent forty years. This from National Organization For Marriage chair John Eastman:

Prior to the Perry challenge to Proposition 8, no judge had ever found a federal constitutional right to same-sex marriage. Such a contention has expressly been rejected by the Supreme Court itself in its 1972 decision in Baker v. Nelson. That's why, before Perry, most legal experts felt it was a huge gamble for gay rights advocates to mount a federal constitutional challenge to traditional marriage laws. But the Hollywood funders of the Perry lawsuit proceeded anyway. I predict their gamble will go bust when the court rules that more than 7 million Californians were perfectly within their rights to define marriage in the traditional way, just as citizens in virtually every nation since the dawn of time have done.
Column: Federal government can define marriage too [USA Today]

My first thought: How nice of John Eastman to join us. When he took over the chair role from Maggie Gallagher more than a year ago, most of us assumed that this role would involve actually engaging with the public. However, he has been all but silent throughout most every new development that's happened since. It wouldn't seem to be a drop-in/drop-out sort of thing, this marriage conversation. But I digress.

As for what the now unhibernated Eastman says, I would like to remind the NOM chair that Ted Olson shot this Baker thing down in just a few lines during the Prop 8 federal trial when he had this exchange with Judge Walker:

THE COURT: Well, now, the Supreme Court in the Baker vs. Nelson case, decided that the issue which we are confronted with here was not ripe for the Supreme Court to weigh in on. That was 1972. What's happened in the 38 years since 1972?

MR. OLSON: Well, a great deal has happened. Among the things that have happened is the
Romer case. Among the things that have happened is the Lawrence vs. Texas case. You know what those cases involve. A lot of other things have happened. Changes in the ballot propositions. California has adopted something completely different than the state -- I guess it was Minnesota or Michigan, involved in that case. So there are a lot of factual situations that are different. This case is very different.

And, by the way, the Supreme Court rejected the opportunity to take a miscegenation case. Now, I think it was -- Dr. Cott testified to this. I think it was 1955. And then they took the case, the Loving case, in 1967.

CONTD: Closing Arguments [AFER]

The one-sentence Baker decision, which dismissed an appeal for want of a federal question, is only binding precedent if the questions before the court now are the same as they were in 1972. They are not. In addition to what Olson mentioned, there is also the matter of the 18,000+ same-gender couples who are married under California law contrasted with the many more state residents who are now deprived of the right. There are the DOMA plaintiffs who are also legally married and are seeking to square that, a vastly different circle than the one afforded to any gay couple in 1972. It is just absurd to suggest that 2012 = 1972 in any way other than far-right convenience. I suspect a majority of the court will agree.

One thing that hasn't changed, however? Jack Baker and Mike McConnell are still together. Perhaps we should ask them about the great and sweeping changes. They've lived through it all, watching the indignities fall down one by one. Here's sincerely hoping that in 2013, they will see one (/two) more go the way of avocado green refrigerators and bell-bottoms.

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