Janet M. LaRue

You don’t need GPS navigation to track the satellite signal to Walker’s discrimination dish— it’s none other than Justice Anthony Kennedy—the Supreme Court’s “gay animus” detector. Walker cites and quotes Kennedy’s opinions in Romer v. Evans and Lawrence v. Texas 17 times. The fact that neither has a whit to do with marriage law isn’t a speed bump for a judge driving a political agenda. Walker is signaling Kennedy that his Romer and Lawrence opinions lead inexorably to laminating same-sex “marriage” onto the U.S. Constitution. Kennedy’s Lawrence opinion, however, suggests that this may be a bridge too far.

Kennedy limited Lawrence to the facts of the case—a Texas statute that criminalized homosexual sodomy in private, which is far afield from a civil law defining who can marry in California. Kennedy wrote:

“It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Furthermore, Walker doesn’t mention the one “on point” case, Baker v. Nelson (1972), in which the Court rejected a constitutional challenge to a state law limiting marriage to a man and a woman. The Court dismissed the appeal of a Minnesota Supreme Court case “for want of a substantial federal question,” which constitutes a decision on the merits of the case, binding on all lower courts.

The Supreme Court held in Hicks v. Miranda that a summary dismissal is binding precedent on all lower federal courts. "[U] ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial.”

In 2004, Justice Joyce Kennard of the California Supreme Court acknowledged the Baker precedent in her concurring/dissenting opinion in another same-sex marriage case, Lockyer v. San Francisco.

"[I]ndeed, there is a decision of the United States Supreme Court, binding on all other courts and public officials, that a state law restricting marriage to opposite-sex couples does not violate the federal Constitution’s guarantees of equal protection and due process of law. … The binding force of a summary decision on the merits continues until the high court instructs otherwise. … The United States Supreme Court has not expressly overruled Baker v. Nelson, … nor do any of its later decisions contain doctrinal developments that are necessarily incompatible with that decision. Until the United States Supreme Court says otherwise, which it has not yet done, Baker v. Nelson defines federal constitutional law on the question whether a state may deny same-sex couples the right to marry."

Judges like Walker who ignore the Big Nine’s precedents generally get a judicial thumping when the Supremes get their hands on the lower court’s impudence. Take, for example, Justice Antonin Scalia’s dissent in Roper v. Simmons, lambasting the lower court’s “flagrant disregard” of the Court’s precedent:

“To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that ‘it is this Court's prerogative alone to overrule one of its precedents. That has been true even where ‘changes in judicial doctrine’ ha[ve] significantly undermined’ our prior holding, and even where our prior holding appears to rest on reasons rejected in some other line of decisions, Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent.”

Let’s hope Scalia writes the majority opinion when Walker’s “order” reaches the Court. Talk about a kick in the briefs.


Janet M. LaRue

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families. Be the first to read Janet LaRue's column. Sign up today and receive Townhall.com delivered each morning to your inbox.