Photo credit: Stacey Ilys

U.S. Supreme Court nominee Sonia Sotomayor was grilled twice on how she might rule should a same-sex marriage case comes before her on the high court –and, both times, she carefully eschewed answering. But there was at least a hint in her responses that she is not yet convinced that a 1972 same-sex marriage case has already settled the question.

The Senate Judiciary Committee was scheduled to vote on Sotomayor’s nomination Tuesday, but that vote was delayed for one week by a request from ranking Republican Senator Jeff Sessions.

Sotomayor’s confirmation is widely expected to breeze through both the committee vote and the Senate floor before the August 7 recess, making her only the second woman on the current nine-member bench and only the third woman in the entire history of the court.

She will replace retired Justice David Souter, who was a fairly dependable vote in favor of equal rights for gays in his 19 years on the court. While some justices, including Souter, have voted differently on the bench than they were expected to, the Human Rights Campaign and other LGBT political organizations feel comfortable that gay issues will get a fair consideration from Sotomayor.

Much of the four-day confirmation hearing, July 13-16, was spent in discussion of Sotomayor’s views about the right to own a gun, the right to have an abortion, and whether she believes a “wise Latina woman” could come to a better conclusion “than a white male.” But during the last two days of the hearing, several Republican senators broached the subject of same-sex marriage bans in the states and on the federal Defense of Marriage Act (DOMA).

Senator Charles Grassley (R-Iowa) brought up a 1972 case, Baker v. Nelson, which the U.S. Supreme Court “dismissed for want of a substantial federal question.” The case was appealed by a gay couple who sought a marriage license in Minnesota and, when denied one, sued in state court. The couple lost in the Minnesota Supreme Court and then appealed to the U.S. Supreme Court.

The Supreme Court did not issue a decision in Baker v. Nelson, but it did dismiss the appeal –an action that has more significance than simply refusing to hear the appeal (aka “deny cert”). In dismissing the appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

Cases must involve a federal issue in order to be reviewed by federal courts. There is dispute within legal circles as to whether that 1972 dismissal means anything today, but Grassley, who describes himself as a “life-long farmer,” trudged into those murky waters. First, he said it means “the federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws.”

“Do you agree that marriage is a question reserved for the states to decide on Baker v. Nelson?” asked Grassley.

Sotomayor said that “is a question pending and impending in many courts,” and she declined to offer her opinion at the confirmation hearing.

Grassley, interrupting her and venturing his own legal opinion, said he was asking, “a very simple question based upon a precedent that Baker v. Nelson is based on.”

“Are you saying to me that Baker v. Nelson is not a precedent?” asked Grassley.

Sotomayor again sought to deflect the question, saying she had not reviewed the case in some time and, “I actually don’t know what the status is.”

“If it is the court’s precedent,” she said, “…I will apply that precedent to the facts of any new situation that implicates it.” She said she expects that, whenever a marriage case comes to the high court, one side will argue that Baker is precedent and the other side will argue the opposite.”

Sotomayor offered to look into the case and get back to Grassley with a more studied response. When Grassley asked her about it again on Thursday, Sotomayor stated more emphatically, “the meaning of that dismissal is actually an issue that’s being debated in existing litigation now.”

“As I indicated yesterday,” said Sotomayor, “I will follow precedent according to the doctrine of stare decisis. I can’t prejudge what the precedent means in the issue [or] what a prior decision of the court means and its applicability to a particular issue until that question is before me as a judge or a justice, if that should happen.”

The debate over the meaning of Baker v. Nelson is, indeed, being debated in existing litigation. In Smelt v. U.S., a gay male marriage lawsuit in which the Obama Justice Department has argued that the Supreme Court’s dismissal of Baker in 1972 benefits those who seek to uphold DOMA and “has precedential effect and is binding.”

Senator John Cornyn (R-Texas) used the context of “same-sex marriage” to discuss the issue of so-called judicial activism.

“If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage,” he said, “would that be making the law or would that be interpreting the law?”

Sotomayor declined to venture an answer, saying she thought any answer would constitute an impression that she has made a pre-judgment on a same-sex marriage case.

“I understand the seriousness of this question. I understand the seriousness of same-sex marriage,” said Sotomayor. “But I also know, as I think all America knows, that this issue is being hotly debated on every level of our three branches of government. It’s been debated in Congress, and Congress has passed an act relating to same-sex marriage. It’s being debated in various courts on the state level. Certain higher courts have made rulings.

“This is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that I have both prejudged an issue and that I come to that issue with my own personal views suggesting an outcome. And neither is true. I would look at that issue in the context of the case that came before me with a completely open mind.”

During other parts of the confirmation hearing, Republican senators did ask some questions about judges making “social change” and being “activists,” terms often taken as code references for gays, guns, and abortion issues.

Senator Lindsey Graham (R-SC) also talked about “difficult societal changes” and “who should get married,” but did not press any questions –directly or indirectly– about gay marriage specifically.

In response to a question from Senator Orrin Hatch (R-Utah), Sotomayor said she does not believe the court is an institute to remedy social injustice.

“No that’s not the role of the courts,” said Sotomayor. “The role of the courts is to interpret the law as Congress writes it. It may be the effect in a particular situation that, in the court doing that, in giving effect to Congress’s intent, it has that outcome, but it’s not the role of the judge to create that outcome. It’s to interpret what Congress is doing and do what Congress wants.”

The only Democratic senator to mention gay civil rights during the four-day hearing was Maryland’s newest Senator Ben Cardin. Cardin stated emphatically to the nominee that he wants a justice “who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay.

“I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd who was beaten and dragged by a truck for two miles because he was black.”