There's been yet another Outbreak of Stupid™ in the gay blawgosphere — and, this time, in the Senate Judiciary Committee — so let's pause to get it right:
The "Baker v. Nelson" that Senator Chuck Grassley referred to, twice over two days, during the Sotomayor confirmation hearings was not the Minnesota decision itself: 291 Minn. 310, 191 N.W.2d 185 (1971). It was the subsequent one-paragraph dismissal of a pending federal appeal by the Supreme Court, 409 U.S. 810 (1972), "for want of a substantial federal question."
The precedential value of such a dismissal (a very rare move) can be, and is, debated in and of itself. The objective (i.e., non-bigot) consensus is that a "federal question dismissal" is only binding in regards to subject matter jurisdiction. And if federal courts lack jurisdiction over a state court case, then of course the underlying merits of that state court ruling remain binding. All that federal Baker v. Nelson says is that state Baker v. Nelson could not be appealed in federal courts given the specific facts of the case and the status of federal Fourteenth Amendment jurisprudence, as it stood in 1972. Nothing more.
But some legal analysts, and all anti-gay bigots, try to bootstrap that flowchart into a claim that federal Baker v. Nelson was then, or is now, somehow a sweeping, all-encompassing "decision on the merits" (i.e., of whether any gay marriage ban can ever be challenged in any federal court). It is not.
All federal Baker v. Nelson says is that, in 1972, same-sex marriage was not a "substantial federal question."
But of course, this is not 1972.
Any constitutional law scholar (or at least those not appearing before a Senate confirmation panel) who researches the issue (Sotomayor testified that she was unfamiliar with it) will tell you that Zablocki v. Redhail (1978), Romer v. Evans (1996) and Lawrence v. Texas (2003) — not to mention DOMA (1996) — have clearly and unambiguously rendered federal Baker v. Nelson a nullity. (State Baker v. Nelson is still perfectly good law — for now.)
Precedent is only precedent until it isn't anymore. Anti-gay discrimination generally, and same-sex marriage specifically, are now obviously "substantial federal questions," period. To suggest otherwise is self-abasing constitutional insolence.