Talk:Baker v. Nelson

Precedent
Contrary to the thoughts of an editor who wishes to insert Weasel Words into the article, it is undisputed that Baker is a precedent. The Supreme Court has categorically Stated that summary decisions are decisions on the merits and are binding on all lower federal courts. As the article already explains, this precedent is limited to some degree when compared to a full decision on the merits. Inserting the Weasel Word "may" in front of "constitutes a decision on the merits" in the opening is an absolutely incorrect statement. Even those individuals who think that Baker doesn't apply to the current debate on marriage, do not dispute that it is a precedent. The editor who continually is making these edits, seems not to understand what "distinguishing" a case actually does. I would ask that the inaccurate edits cease, as they make categorically incorrect statements. Ghostmonkey57 (talk) 15:53, 1 September 2010 (UTC)

I have worked as an appellate attorney for 20 years, so I am quite familiar with the distinction between disputing Baker's status as a precedent, and distinguishing it from subsequent cases. Ghostmonkey's categorical assertion in the main article regarding Baker's status are appropriate for an appellate brief, but not in an encyclopedia article. In this talk forum, Ghostmonkey even admits that Baker's precedential value is "limited to some degree when compared to a full decision on the merits;" yet no such qualification (dare I say it -- weasel words!) appear in his version of the article.

The federal judiciary, and all parties to the various litigations, are uncertain as to Baker's authority. The article admits this, in its discussion of subsequent cases. Moreover, that uncertainty will remain so until SCOTUS answers the question, if they ever do. To say otherwise is argumentative, and violates wikipedia's neutral POV rules.

I am open to negotiation regarding the actual language used in the article. Perhaps language that "some commentatators and some lower courts have held . . ., while other courts and commentators state that . . . " But not Ghostmonkey's unequivocal and unsupportable assertions. Jim Simmons (talk) 04:25, 2 September 2010 (UTC)


 * Your edit is a flat out misrepresentation of the State of the law. It is unequivocal FACT that Baker constituted a decision on the merits. "[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction". Mandel v. Bradley, 432 U.S. 173, 176 (1977). Lower Federal Courts are expressly prohibited from ruling in a way inconsistent with binding precedent. "[Summary decisions] prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977). There is absolutely NO dispute that Baker was a precedental decision on the merits. Thus, your edits are patently false and incorrect. You seem to be misunderstanding what the article says. A couple of us worked on the article quite extensively and made it quite clear as to the extent of the precedental effect of Baker. You see, there is a difference between, "may constitute a decision on the merits" (which is a patent falsehood) and "courts disagree on how best to apply the precedent" (which the article already indicates.) The latter recognizes that there is a precedent, but that it may be distinguishable. It is absolutely without dispute that Baker is a decision on the merits, and is a binding precedent in-so-far as the precise issues that were raised in the jurisdictional statement. Not a single judge anywhere has disputed this, even if they disagree that Baker controls another issue that might be before them. As I previously indicated, your edits are incorrect. You are failing to understand the effect of distinguishing a case. When a case is distinguished, it doesn't mean that it isn't precedental, only that the facts are different enough for the case to not control in that specific circumstance. All of this is addressed in the article. Please do not insert these inaccurate edits again. My thanks. Ghostmonkey57 (talk) 12:34, 2 September 2010 (UTC)


 * I'm no legal scholar, but here's what's bad about the lead paragraph -- by stating unequivocally that the case is a "controlling precedent" on the issue, one would think the issue is completely settled when it is clear it is not. The Wikipedia Editors Supreme Court has no power to change reality.--Milowent • talkblp-r  12:44, 2 September 2010 (UTC)
 * I added a cite to a recent National Law Journal article about the precedent debate and amended the lead to try to address both your concerns.--Milowent • talkblp-r 12:52, 2 September 2010 (UTC)
 * While I think your edit is redundant (as this point is addressed later in the article) it is at least accurate. The fact is, unequivocally, Baker IS a controlling precedent. The United States Supreme Court has clearly and explicitly, outlined that fact. The only question is if a subsequent case that comes before the court is sufficiently different in fact, so as to make Baker distinguishable. Hence, there is a difference between, "Baker may constitute a controlling precedent" or "Baker may constitute a decision on the merits" (Both categorical untruths) and "Judges are uncertain as to how best to apply the precedent." I would point out that the overwhelming trend has been to treat Baker as controlling on the issue of same-sex marriage. Only a few Courts have said that Baker was sufficiently distinguishable. Most of the Courts to consider the issue believe that it is controlling. This could bring into account Undue Weight issues, if we give too much weight to what is a minority view in the law. However, I don't think your edit is necessarily a bad thing. It is supportable, and accurate. The previous edits were not. Ghostmonkey57 (talk) 13:00, 2 September 2010 (UTC)
 * I would also point out that the lead paragraph merely said that Baker was "a controlling precedent" it did not identify a particular issue or circumstance as to when it would be controlling. Again, I reiterate, Baker is absolutely a controlling precedent, in-so-far as the issues that were presented in the Jurisdictional Statement before the Court in 1972. (Equal Protection, Due Process.) Ghostmonkey57 (talk) 13:02, 2 September 2010 (UTC)


 * I think Milowent's draft is a fair compromise between our positions, and am willing to go along with it. However, absent a major change in circumstances, any further assertions that Baker is controlling precedent, when it is far from clear what, if anything, Baker controls, will continue to be corrected by me, to maintain current truth, which is that courts disagree on that question. Jim Simmons (talk) 13:43, 2 September 2010 (UTC)
 * Milowent's edit is accurate, yours was not. Baker IS a controlling precedent, whether we like that or not. The only question is to how far that precedent extends. The majority of Courts to consider the issue find it to be controlling in more circumstances than you seem to want to recognize. Ghostmonkey57 (talk) 15:50, 2 September 2010 (UTC)
 * So how would you respond to the points in this: http://thomaskraemer.blogspot.com/2011/03/jack-baker-case-still-cited-to-bar-gay.html --83.71.100.181 (talk) 01:32, 17 March 2011 (UTC)

Hopefully I'm putting this in the correct spot. The sentence "As of October 2014, no U.S. Court of Appeals has held Baker to be controlling on the subject of same-sex marriage" is wrong. The 8th Circuit has said that Baker is binding, in Citizens for Equal Protection v. Bruning. I think what the sentence is really trying to say is that after Windsor, no appeals court to consider the question has found Baker binding, including the 4th, 7th, 9th, and 10th Circuits. 24.57.210.141 (talk) 07:52, 22 October 2014 (UTC)


 * Correct. I made a change. I'll look into adding a bit about Citizens later. Bmclaughlin9 (talk) 14:39, 22 October 2014 (UTC)


 * Bmclaughlin9's edit is a welcome improvement (more faithful to the reference). Separately, I would caution editors to find a reliable source for the proposition that the "8th Circuit has said that Baker is binding" (as suggested by the anonymous editor here). Those words don't appear in the source--WP:SYNTHESIS. Wonderbreadsf (talk) 15:19, 22 October 2014 (UTC)


 * Understood. The 8th circuit's use of Baker in CFEP v. Bruning is something of an afterthought and not more than a mention (though with emphasis added!). I find our mention of two dissents in courts of appeals seems to diminish the degree of dispute about Baker, so I added two rather more live examples. Bmclaughlin9 (talk) 17:25, 22 October 2014 (UTC)


 * When in doubt, WP:BRD. Expanding on the Baker debate (unquestionably "live") I support. The Puerto Rico addition is spot on (and beautifully sourced with regard to Baker).


 * I'm concerned about how the article treated the South Dakota case. It juxtaposed the brief reference of Baker in Bruning with the discussion of binding precedent of Bruning itself (and the source provided for the latter never mentioned Baker). That’s the sort of WP:SYNTHESIS that animated my initial note in this talk thread.


 * I've tried but failed to find another post-Windsor decision (not pleading) that showed Baker's continuing vitality. (Louisiana case was no help.) I'll keep looking. Wonderbreadsf (talk) 18:17, 22 October 2014 (UTC)


 * UPDATE: I found nothing very useful among recent decisions. Instead, I added some observations about what Judge Sutton may do on the Sixth Circuit cases. Whether that speculation proves true or not, it certainly speaks to the continuing debate. That said, I'm not in love with this edit. Wonderbreadsf (talk) 15:38, 23 October 2014 (UTC)

Tagged for Primary Sources
I tagged the article for primary sources. While there are a few secondary sources, the vast majority of the refs are to primary sources. WP:MOSLAW allows the use of primary sources (and gives them priority in the event of a conflict between primary and secondary sources), but it also requires the use of appropriate secondary sources. On a case this old, there should be plenty of law journal/review articles, plus books, news, etc. GregJackP  Boomer!   01:40, 16 July 2012 (UTC)

Encyclopedic content?
It appears from the Talk history, that most of the concerns about the un-encylopedic nature of this article have been aired without meaningfully addressing the underlying issues.

I am going to replace the most unhelpful portions, 4.1 Baker in federal courts and 4.2 Baker in state courts, with a simple summary of the conflicting state affairs as summarized by recent, reliable sources. That shouldn't require 150 words.

If you care to defend the present tome, please share you reasoning here.

Wonderbreadsf (talk) 22:06, 2 October 2014 (UTC)


 * Well done! Bmclaughlin9 (talk) 23:19, 2 October 2014 (UTC)

Analysis of Windsor not Baker
I'm reverting a recent addition [//en.wikipedia.org/w/index.php?title=Baker_v._Nelson&diff=630965090&oldid=630803346] because it is a discussion of the Windsor precedent. The content itself was quite good. (It was already in the Windsor article, so there was no point in moving it over there.) Neither the added text nor the underlying sources said anything about applying Baker. Wonderbreadsf (talk) 17:07, 25 October 2014 (UTC)