Ed Whelan has ably summarized the unfortunate Tenth Circuit ruling today in Kitchen v. Herbert, affirming a district court’s invalidation of Utah’s marriage amendment. Like Ed, I am impressed with Judge Paul Kelly’s dissent. Here I’d like to highlight just how irresponsible it was of Judges Lucero and Holmes to disregard the binding character of the precedent in Baker v. Nelson (1972), in which the Supreme Court summarily dismissed an appeal from the Minnesota supreme court (in a case identical to today’s same-sex marriage cases) “for want of [a] substantial federal question.”
This summary dismissal was in a case not fully briefed and argued, but is nonetheless a completely binding precedent on all federal courts inferior to the Supreme Court. Many district courts have now disgracefully pitched the Baker case overboard, and the Tenth Circuit panel’s two judges in the majority have done so again in Kitchen. As Judge Kelly’s dissent rightly notes, there is nothing in the Supreme Court’s more recent rulings in Romer v. Evans, Lawrence v. Texas, or United States v. Windsor that contradicts Baker, and so it must control unless and until the Supreme Court overrules it.
How does Judge Lucero get around Baker? Apparently by hoping his readers (including the justices of the Supreme Court should they review this ruling) will not notice the word “here” or its context in a quotation he offers of another case. Judge Lucero writes, “The Supreme Court has held that ‘summary dismissals are, of course, to be taken as rulings on the merits,’” and then adds this (my punctuation in reformatting what was a block quotation in the original, p. 16): “Summary dismissals ‘do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits.’”
Notice that word “here” in the phrase “do not . . . have the same precedential value here.” That word appears in a footnote Lucero is quoting, in a 1979 Supreme Court decision, and the word “here” plainly means “here in the Supreme Court,” should a case arise in which a previous summary dismissal is on point. But elsewhere, in lower courts, as the Court’s own repeated statements make clear, summary dismissals have exactly “the same precedential value” as fully briefed and argued decisions on the merits, and those courts do not have the same freedom of reconsideration. Baker is a precedent squarely on point, indeed identical, to the Kitchen case in Utah, and as Judge Lucero elsewhere concedes, even his best alternative precedent for undermining Baker—last year’s Windsor decision—deals with an issue that “is not identical to the question before us” (p. 18, my emphasis). Hence it is clearly improper for him not to follow Baker as a matter of course.
Judge Kelly gives ample reasons why the court should follow Baker even if it has some freedom of action not to do so, and his opinion is well worth reading as a model of the judicial restraint the Constitution calls for in these cases. But let us not allow it to pass from our notice, just how fast and loose the activist judges play with the time-honored norms of lower-court respect for Supreme Court precedent. Along with all the other principles they traduce, that is.