The Volokh Conspiracy

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Stare Decisis in Obergefell and Dobbs

Justices Breyer, Sotomayor, and Kagan had no difficulty overruling Baker v. Nelson, and millennia of tradition.


In recent years, Justice Kagan and her colleagues have repeatedly beat the same drum on stare decisis. No doubt, they were dreading the day when a majority of the Court would overrule Roe. But, on at least one occasion, the Court's liberals threw that caution to the wind.

I speak, of course, about Obergefell v. Hodges. That decision overruled Baker v. Nelson, to say nothing about millennia of deeply-rooted traditions. Justice Kennedy overruled Baker without any discussion, whatsoever, of stare decisis.

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

That's all folks. Justice Kennedy didn't mention any of the Casey factors. Just one sentence. Reminds me how the Warren Court glibly overruled precedents in Mapp v. OhioGideon v. WainrightMiranda v. Arizona, Katz v. United States, and other cases. These decisions, which wrested power away from the states, hardly represented a return to scrupulous neutrality.

I've long thought that the Justices in the Obergefell majority were permanently estopped from professing fidelity to stare decisis. But, to paraphrase Justice Souter, the world is made brand new every morning.

NEXT: Justice Breyer Is Forever Afflicted With Lochnerphobia

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  1. Ah yes Obergefell, the day having the federal government name something a certain way became a fundamental human right. I really wonder what future human and alien civilizations will think of us.

    1. All Supreme Court decisions are expressions of mere feelings, biases and self interest. They are garbage, with no external validation. All violate Article I Section 1 giving all lawmaking powers to the Congress. Their sole validation is enforcement by federal thugs with guns.

  2. Baker v. Nelson was a summary dismissal for want of a substantial federal question. No briefing, no oral argument and no detailed reasoning. That is hardly conducive to application of stare decisis analysis.

    1. Correct. The Baker v. Nelson argument has always been BS. Overturning a summary dismissal is nothing like overturning a precedent that has been explicitly reaffirmed once has been applied in dozens of US Supreme Court cases. This is Prof. Blackman at his most hackish.

      1. This is definitely not Prof Blackman at his most hackish. This is just his typical hackery.

    2. That portends that they wanted to make a legal point. This whole "article" seems like cheap red meat thrown to a base frothing at the mouth to just overturn Roe v Wade.

      When you read it in that context, it makes perfect sense to write such malarkey.

  3. Although Kennedy did not explicitly mention that Casey factors, he wrote:

    [T]he right to marry presumed a relationship involving opposite-sex partners. [...] This was evident in Baker v. Nelson, a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question. Still, there are other, more instructive precedents.

    Leaving aside that Baker was a one-line summary decision based on the thinnest of reeds, it strikes me that at least one of those precedents, Lawrence significantly changed the law. Additionally, the facts about the nature of sexuality and homosexual relationships changed in how Kennedy applied Loving, Zablocki and Turner.

    1. it strikes me that at least one of those precedents, Lawrence significantly changed the law.

      You mean that Scalia's dissent in Lawrence was correct when he argued that "State laws against . . . same-sex marriage . . . are likewise sustainable only in light of Bowers' validation of laws based on moral choices"?

  4. Prof. Blackman wrote, "I speak, of course, about Obergefell v. Hodges. That decision overruled Baker v. Nelson, to say nothing about millennia of deeply-rooted traditions." Of course, we all know that Prof. Blackman is a brilliant lawyer, but a historian he is not. The American Anthropological Association stated on 26 February 2004: "The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies." Emperor Nero married three different men. So much for millennia of deeply-rooted traditions.

    1. The Bible and Koran would like to have a word with you, if history is what you are claiming to be an expert on.

      1. IANAL, but my guess is that when the opposing attorney tells the jury he's relying on Nero for a precedent, it's probably best to remain seated and let him keep talking.

        1. LOL....nice. Yes.

          1. Well one hurdle I believe the Justices need to clear before overturning precedent is to ask themselves, am I doing this simply because I personally would have voted the other way on the original case, or am I so confident the case was so badly decided that a packed court of differently leaning justices would not immediately reverse my reversal.

            Would a court with a clear majority of conservative justices ever reinstate Baker? Can’t see it happening. Hurdle cleared.

            Now would a clear majority of left leaning judges reinstate Roe before they even get a chance to decorate their new offices? If so, maybe the bar for overturning precedent has not been cleared.

      2. I would not have used Nero as my counter-example, but the point that the Bible and the Koran are not the entirety of history and tradition is well taken. The ancient Greeks, multiple pre-Columbian American societies, early China and the Persian empire had no issues with homosexuality either.

        1. People like to claim America is a Judeo-Christian country inspired by the Ten Commandments. That is the target audience. Other claims have others founders and other target audiences.

          1. People like to claim a great many things. But to try to limit history and tradition to the Bible and the Koran is like trying to limit political thought to one single theory (say, Marxism, for example). There's a whole lot more out there than your cramped view that just one school of thought is decisive.

        2. The ancient Greeks may not have had "issues with homosexuality," but they never thought that same-sex marriages should be recognized by law. (I don't know about "multiple pre-Columbian American societies, early China and the Persian empire," but I'd bet they didn't recognize same-sex marriage, either.)

          1. I'm not going to speculate on what the Greeks, Persians, et al would have thought of same sex marriage when there's no evidence that they ever actually thought about it. In ancient Greece, marriage was primarily about property rights and family inheritance anyway, so there would have been no need for same sex marriage. We have a very different understanding of the purpose of marriage than they did, as evidenced by the fact that you can no longer sell your daughter for five cows.

            Given our society's understanding of the purpose of marriage, and given that our society has for the most part come to accept legal equality for gays, is there any reason not to expand marriage to include same sex couples? As best as I can tell, they get married for mostly the same reasons straight couples do.

            1. Is there any reason for the legislature or public not to expand marriage to include same sex couples? Maybe not.

              But the Court was not the legislature or the public acting as sovereign, and that's the whole point: It wasn't their decision to make. They weren't given the job of being a permanent Constitutional Convention, even if they come up with the occasional amendment a con-con might have agreed with.

              1. Yes it was, Brett. The court's job is to decide what the law (including the Ninth Amendment) is.

  5. But a brother still can't marry his sister, well unless he(she?) undergoes "Sexual Reassignment" (nice way to describe cutting off the Balls and Tallywhacker) Surgery.... or however the other version works.

    1. What does the referenced surgery have to do with whether a brother and sister can marry one another? That union would still be prohibited post-operation.

    2. Since the Bible is being cited for his value as history and tradition earlier in the thread, I will point out that there were sibling marriages in the Bible, including Abraham and Sarah (she was his half sister if memory serves).

      But taking it a step further, the rationale for banning sibling marriages (aside from the oooh ick factor) is inbred children. That would not apply to a same sex sibling marriage. So, is there any public policy reason to ban a same sex sibling marriage?

      1. Really, the only argument that had any relevance at the time was that opposite sex was actually part of the understood definition of "marriage", so that a same sex marriage no more needed to be banned than loudly being silent.

        And if this was going to be changed, it called for an amendment, not judicial fiat.

        1. Nah, Ninth Amendment.

          1. To appeal to the 9th amendment, you'd have to demonstrate that SSM had already been a right at the time the 9th amendment was adopted, or at least for a very long time. Good luck with that.

            1. We've already had this conversation. No I don't have to demonstrate that.

    3. Can a brother marry his brother? And if not, how is that prohibition sustainable in the wake of Obergefell and Lawrence?

      1. So that casual little normalization pretty much ticks off the last item in Scalia's list in his much-scorned Lawrence dissent, right? Not bad for a couple of decades.

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