By Mike Dorf
In my blog posts on Tuesday and Thursday of last week, I explained that I thought a stay of the SSM judgment in the Utah case might be warranted because a federal court lacks the authority to provide "grandfather" protection for the couples who married while the district court ruling was in effect, in the event that the merits ruling was eventually reversed. That statement was partly based on the concurring opinion of Justice Stevens in Edgar v. MITE. There, in the context of addressing whether a case was moot, Justice Stevens said that even if a federal district judge issues a preliminary or final judgment declaring that the plaintiff has a constitutional right to act in violation of a state law, if the plaintiff does just that, but the judgment is later reversed on appeal, the plaintiff may be prosecuted for the conduct--even though the conduct had been declared lawful at the time it occurred. It might be helpful, Justice Stevens said, for federal courts to be able to immunize conduct even if their judgments are later reversed, but the federal judicial remedial power does not extend that far.
To be sure, Justice Stevens was writing in a concurrence to address an issue that the majority did not purport to address. And Justice Marshall, joined by Justice Brennan, took exactly the opposite view: They said that a preliminary injunction against enforcement of a state criminal law should be presumed to provide permanent protection against prosecution of the plaintiff for violations of the law that occurred while the injunction was in place. Furthermore, as the editors of the 6th edition of the Hart & Wechsler Federal Courts casebook point out at page 1120, Justice Marshall might have cited
Oklahoma Operating Co. v. Love in support of his view. There, Justice Brandeis wrote for a unanimous Court that if a party challenging state rates as conficatory succeeded in obtaining a permanent injunction from a district court, then even if the injunction is reversed on appeal, "a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite."
So, does a federal district court injunction that is later reversed on appeal provide immunity for acts taken during the pendency of the injunction? I should say that I prefer the position of Brandeis and Marshall to that of Stevens. One might think this is simply a matter of due process notice -- i.e., that it's unfair to prosecute people for actions they took while they were told that those actions were lawful. However, notice is a potentially circular concept. If it were clear that the Stevens view was the law, then litigants would be on notice that violating a law even while it was enjoined by a district court decision carried the risk of subsequent prosecution if the district court decision was reversed. So for me, the better reason for allowing a subsequently-reversed injunction or declaratory judgment to immunize conduct pendente lite is that such a rule encourages people to go to court to test their rights rather than simply violating the law.
Having said all of that, I nonetheless think that if the 10th Circuit or the Supreme Court eventually rules that the Utah ban on same-sex marriage is valid, the people who got married in the interim would not be entitled to have their marriages "grandfathered" as valid. At most, the Brandeis/Marshall view would support the conclusion that their marriages be treated as valid during the period when the law was held invalid. Grandfather clause protection would mean giving permanent effect to a (by-hypothesis) subsequently reversed decision--and there really is no authority for that.
Meanwhile, of course, much has happened since the district court and 10th Circuit declined to grant a stay. In particular, as of yesterday, about 900 Utah same-sex couples had taken advantage of the ruling to marry. That, to my mind, changes the equities considerably. A Supreme Court stay of the district court ruling that undid those 900 marriages would work the very harm that I thought could be avoided by the immediate granting of a stay--the creation of a class of marriages that are granted then taken away. The Court could, I suppose, grant a stay of enforcement for further marriages pending final resolution of the case, but that seems much less urgent now, and would itself create an awkward situation in which same-sex couples who rushed to marry are treated as married but those who waited a few weeks are not.
Accordingly, I now think that the right result for the SCOTUS, when faced with Utah's emergency stay application, is to deny, based on a lack of probable success on the merits and the balance of equities.