Wednesday, September 3, 2014

The Baker v. Nelson Argument Against Marriage Equality Litigation

“It’s such a shame
It’s such a crime
To be so close
And yet so far
So overdue
Yet underpar
So out of time
It’s too sublime”

I've posted a draft of my article “Baker v. Nelson: Flotsam on the Tidal Wave of Windsor’s Wake” on the Social Science Research Network (linked here).  The article is forthcoming in the Indiana Journal of Law and Social Equality.  The federal courts that have considered whether the Supreme Court’s summary rejection (without opinion) of a same-sex couple’s constitutional challenges to Minnesota's exclusionary marriage laws in Baker v. Nelson in 1972 has been superseded by subsequent developments in constitutional doctrine have agreed that Baker is no longer dispositive.  Yet defenders of mixed-sex marriage laws continue to invoke Baker in desperate bids to keep lower courts from addressing same-sex couples’ constitutional justice claims.   These marriage exclusionists are wrong to rely on Baker, and the courts that have seen Baker swept to the side in the wake of the Supreme Court’s historic decision in United States v. Windsor in 2013 have done so properly.  Or so I argue in “Windsor’s Wake.”

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