Prop 8 -- Significance of Baker v Nelson?

[Polycarp]

In a Washington Post op-ed piece, former Attorney General Edwin Meese claims that SCOTUS decided the gay marriage question “on the merits” back in 1972 and found there was “no substantial federal question.” My understanding was that this was simply a denial of cert. and not precedential. Any Dopers-at-law care to weigh in on whether Meese’s claim has any merit as a matter of law? (I’m not looking for a debate here, but rather to understand whether this is a legitimate argument or bloviation.)

[pravnik]

A simple denial of cert has no precedential weight, but the Supreme Court didn’t deny cert. At the time, the case was a mandatory appeal rather than a writ of certiorari. The Supreme Court had to hear appeals as a matter of right from state courts regarding the constitutionality of state stautes prior to the passage of the Supreme Court Case Selections Act in 1988.

So instead of denying cert, they issued a one sentence summary dismissal stating that the case presented no substantial federal question. This is arguably a statement on the merits; the Court said that lower courts are barred from reaching decsions that contravene its own decisions regarding substantial federal questions in Hicks v. Miranda, 422 U. S. 332 (1975):

We agree with appellants that the District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S.C. § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement. As MR. JUSTICE BRENNAN once observed,

“[v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case . . . ,”

Ohio ex rel. Eaton v. Price, 360 U. S. 246, 360 U. S. 247 (1959); cf. R. Stern & E. Gressman, Supreme Court Practice 197 (4th ed.1969) (“The Court is, however, deciding a case on the merits, when it dismisses for want of a substantial question . . .”); C. Wright, Law of Federal Courts 495 (2d ed.1970) (“Summary disposition of an appeal, however, either by affirmance or by dismissal for want of a substantial federal question, is a disposition on the merits”). The District Court should have followed the Second Circuit’s advice, first, in Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259, 263 n. 3 (1967), that,

“unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that, if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise;”

and, later, in Doe v. Hodgson, 478 F.2d 537, 539, cert. denied sub nom. Doe v. Brennan, 414 U.S. 1096 (1973), that the lower courts are bound by summary decisions by this Court “until such time as the Court informs [them] that [they] are not.'”

Italics in original. Meese’s argument is that the Court has previously said, back when a case like this was an appeal as of right, that gay marriage doesn’t present a substantial federal question and that the District Court should have been bound by that. The Petitioners argued that the precedential landscape has changed and cited numerous gay friendly decisions by the Supreme Court that suggest that the Court’s position has changed.

[Captain_Amazing]

The Supreme Court didn’t deny cert. This was a case where the Supreme Court couldn’t deny cert, because it was brought under 28 USC 1257(2). 28 USC 1257 (2), until it was amended in 1988, said that the Court could accept this case on appeal. It was under the court’s appelate jurisdiction It dismissed it “for want of a substantial federal question”. The Cort in the 1975 case Hicks v Miranda said that when it does that, it’s a judgement on the merits and is precedent. From the case:

[qoute]A federal constitutional issue was properly presented, it was within our appellate jurisdiction under 28 U.S.C. § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We were not obligated to grant the case plenary consideration, and we did not; but we were required to deal with its merits.
[/quote]

Baker v. Nelson has been used as precedent before.

Of course, Pravnik said it better than I did.

[Polycarp]

Thanks, gentlemen!