Grassley Grills Sotomayor Over Gay Marriage

GRASSLEY: Now, I believe that I’m going to ask you something you never been asked before during this hearing, I hope. I’d like to be original on something.

I want to say to you that there’s a Supreme Court decision called Baker v. Nelson, 1972. It says that the federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws, quote, “for one of substantial federal question,” which obviously is an issue the courts deal with quite regularly. I mean, the issue of is it a federal question or not a federal question. So do you agree that marriage is a question reserved for the states to decide based on Baker v. Nelson?

SOTOMAYOR: That also is a question that’s…

GRASSLEY: I thought I was asking…

SOTOMAYOR: … pending and impending in many courts. As you know, the issue of marriage and what constitutes it is a subject of much public discussion. And there’s a number of cases in state courts addressing the issue of what — who regulates it, under what terms.

GRASSLEY: Can I please interrupt you? I thought I was asking a very simple question based upon a precedent that Baker v. Nelson is based on the proposition that yesterday in so many cases, whether it was Griswold (ph), whether it was Roe v. Wade, whether it was Chevron, whether it’s a whole bunch of other cases that you made reference to, the Casey (ph) case, the Gonzalez (ph) case, the Leegin Creative Leather Products case, the Kelo case. You made that case to me. You said these are precedents. Now, are you saying to me that Baker v. Nelson is not a precedent?

SOTOMAYOR: No, sir. I just haven’t reviewed Baker in a while. And so, I actually don’t know what the status is. If it is the court’s precedent, as I’ve indicated in all of my answers, I will apply that precedent to the facts of any new situation that implicates it.

GRASSLEY: Well…

SOTOMAYOR: What was the first question (inaudible)…

GRASSLEY: … then, tell me — tell me what sort of a process you might go through if a case — a marriage case came to the Supreme Court of whether Baker v. Nelson is precedent or not. Because I assume if it is precedent, based on everything you told us yesterday, you’re going to follow it.

SOTOMAYOR: The question on a marriage issue will be two sides will come in. One will say Baker applies. Another will say this court’s precedent applies to this factual situation, whatever the factual situation is before the court. They’ll argue about what the meaning of that precedent is, how it applies to the regulation that’s at issue. And then the court will look at whatever it is that the state has done, what law it has passed on this issue of marriage and decide, OK, which precedent controls this outcome.

It’s not that I’m attempting not to answer your question, Senator Grassley. I’m trying to explain the process that would be used. Again, this question of how and what is constitutional or not or how a court will approach a case and what precedent to apply to it is going to depend on what’s at issue before the court. Could the state do what it did?

GRASSLEY: Can I interrupt you again? Following what you said yesterday, that certain things are precedent, I assume that you’ve answered a lot of questions before this committee about, even after you said that certain things are precedent, of things that are going to come before the court down the road when — if you’re on the Supreme Court. You didn’t seem to compromise or hedge on those things being precedent. Why are you hedging on this?

SOTOMAYOR: I’m not on this because the holding of Baker v. Nelson, as it’s holding. As a holding, it would control any similar issue that came up.

It’s been a while since I’ve looked at that case, so I can’t, as I could with some of the more recent precedent of the court or the more core holdings of the court on a variety of different issues, answer exactly what the holding was and what the situation that it apply to.

I would be happy, Senator, as a follow up to a written letter or to give me the opportunity to come back tomorrow and just address that issue. I’d have to look at Baker again.

GRASSLEY: I would appreciate it.

SOTOMAYOR: It’s been too long since I’ve looked at it. And so — it may have been, sir, as far back as law school, which was…
GRASSLEY: Oh, you were probably…

SOTOMAYOR: … 30 years…

GRASSLEY: … probably in grade school, you were, at that time.

SOTOMAYOR: It was — that I looked at it, sir.

LEAHY: It’s one line. It’s just one line. You could read it (OFF-MIKE)

GRASSLEY: OK. I want to go on and — but I would like to have you do that, what you suggested, you’d answer me further after you studied it.

I have a question that kind of relates to the first question. In 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act, which defined marriage for the purpose of federal law as between one man and one woman. It also prevents a state or territory from giving effect to another state that recognized same-sex marriages.

Both provisions have been challenged as unconstitutional, and federal courts have upheld both cases. One is a Wilson (ph) case; one is a Bishop (ph) case. A district court — yes, a district court. Do you agree with federal courts, which have held that the Defense of Marriage Act does not violate the full faith and credit clause and is an appropriate exercise of Congress’s power to regulate conflicts between laws of different states?

SOTOMAYOR: That’s very similar to the Austin (ph) situation, but the ABA rules would not permit me to comment on the merits of a case that’s pending or impending before the Supreme Court.

The Supreme Court has not addressed the constitutionality of that statute. And to the extent that lower courts have addressed it and made holdings, it is an impending case that could come before the Supreme Court, so I can’t comment on the merits of that case.

GRASSLEY: Have you ever made any rulings on the full faith and credit clause?

SOTOMAYOR: I may have, but if your specific question is, have I done it with respect to a marriage-related issue, no.

GRASSLEY: Well, not — on — on anything on the full faith and credit clause.

SOTOMAYOR: I actually have no memory of doing so.