That reading comes from a one-sentence order the court issued in a 1972 case, Baker v. Nelson, which said there was no “substantial federal question” in a state’s decision to ban same-sex marriages.
The dismissal of that long-ago case might be the reason that same-sex marriage supporters see their winning streak in federal courts come to an end.
And it could give lower court judges, who know the ultimate answer on same-sex marriage will come from the Supreme Court, a way to uphold voter-approved state bans without deciding the thorny constitutional questions that accompany the issue…
At the time of Baker, Ginsburg said during oral argument, “The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny. And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”