We saw that just days ago in the same‐sex marriage decision, Obergefell v. Hodges. In 1967, after the Supreme Court struck down a Virginia statute criminalizing interracial marriage, Loving v. Virginia, a Minnesota same‐sex couple, looking to the Loving decision, unsuccessfully sought a marriage license from a county clerk.
The Minnesota Supreme Court ruled that the clerk’s decision did not violate the U.S. Constitution, and in 1972, in Baker v. Nelson, the U.S. Supreme Court summarily dismissed the couple’s appeal. Yet less than two weeks ago the Court made same‐sex marriage the law of the land, thus overruling Baker v. Nelson.
Perhaps the most famous example of the Court’s overruling a prior constitutional ruling is the 1954 Brown v. Board of Education decision, the public school desegregation case that rejected the “separate‐but‐equal” principle that arose from the Court’s 1897 Plessy v. Ferguson decision.
More recent, however, was the 2003 case of Lawrence v. Texas, where the Court found a Texas statute criminalizing same‐sex sodomy to be unconstitutional under the Fourteenth Amendment’s Due Process Clause, thus overruling Bowers v. Hardwick, which it had decided only 17 years earlier.
The Lawrence decision is instructive because it prepared something of a foundation for Obergefell. With same‐sex sodomy illegal in several states when Lawrence came before the Court, same‐sex marriage could hardly have been made the law of the land. Thus, while not a precedent, strictly speaking—nor is Obergefell a proper example of stare decisis based on Lawrence—the Lawrence decision was certainly a precondition and an example of how law changes over time, often in small steps.
But what Obergefell illustrates also is the interplay between stare decisis and the division of powers between the federal and state governments. Prior to the Court’s ruling, the regulation of marriage rested almost entirely with the states. Several, of course, had recently changed their law and begun recognizing same‐sex marriages. But that “precedent”—resting the regulation of marriage with the states—was limited by Obergefell insofar as states can no longer refuse to recognize same‐sex marriages.
And the way that was done is also instructive. The division of powers between federal and state governments reflects American federalism. But that arrangement was fundamentally changed by the Civil War Amendments. The Fourteenth Amendment in particular, for the first time, provided federal remedies for state violations of our rights, plus the duty of states to apply the laws equally. The Obergefell petitioners brought their case on both grounds, claiming that the states deprived them of their right to marry their partners and denied them the equal protection of the laws. Ultimately, the Court decided the case mainly on the first ground, which is unfortunate because, as Justice Thomas showed in his dissent, the couples were free to marry; but because the state would not recognize their marriage and afford them the accompanying benefits, the decision should have rested mainly on equal protection grounds—the state was denying them the benefits it was providing for opposite‐sex couples.
Not only the Court, but also the four dissenters failed to articulate a well‐reasoned account of how our Fourteenth Amendment jurisprudence was meant to work. In a nutshell, while the Constitution limited federal power, that amendment was meant to limit states from running roughshod over our natural rights. Because so many judges are unclear about what those rights are, while many others believe that question should be left to the democratic process, which would defeat the purpose of the amendment, stare decisis is likely to continue playing a limited role in this most active area of our constitutional law.