Monday, December 30, 2013

Can a Federal Court Provide "Grandfather" Status to Utah Same-Sex Marriages If the District Court Ruling Is Later Reversed on Appeal?

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.


Keith K said...

What would happen to a hypothetical couple that are married during the period before such marriages are deemed invalid, but moves away from Utah.

E.g. I marry someone in Utah before a stay is granted and move to California where they recognize the marriage.

Does recognition and the granting of Full Faith and Credit to a marriage from Utah by the State of California hinge on the continued validity of the marriage in a place I no longer live or does such recognition exist based on the validity at the time I moved? At the time it was granted?

David Ricardo said...

Mr. Dorf and Mr. Kaplan and others raise interesting and un-resolvable questions about SSM and court rulings. A corollary of Keith’s question is what about the status of a same sex married couple that moves to Utah while the ruling is in place. Utah presumably recognizes marriages that were validly created in other states, so presumably it must recognize SSM while the ruling is in place. But then what if the Utah ban is reinstated? Does this mean retroactive revocation of the couple’s marriage, along with the attendant penalties (tax issues etc)?

Of course the whole issue of recognizing SSM that were legally performed in a different state for a couple now residing in a state that bans such marriages must be resolved. Ohio has taken a small step in this direction, and based on the cases so far it appears that the only basis for a state to deny recognition of some marriages performed out of state but not others is bias and animus towards same sex couples.

As I and others have commented earlier on this Forum and other places, the Supreme Court has no one to blame but themselves for this mess, and a massive legal mess it is. The Supreme Court declined to settle the issue of SSM, ruling in California on a technicality rather than addressing the core issue. Now the Court must harvest this bitter fruit from the seeds that they themselves planted. The victims of course are same sex couples whose marital status will remain in doubt for years.

They and we the people deserved better from the Supreme Court. When enough time has passed so that a dispassionate history of the Court and this issue can be written, the Court will be described as Justices who knew what the correct legal ruling was, but were cowed by fear of public opinion. The whole sorry sordid history of the law and SSM cannot be over soon enough.

Michael C. Dorf said...

Keith raises a really interesting question. If the Supreme Court were to say that there is no right to SSM (yet), then presumably that would mean that DOMA Sec 2 is also still valid, so California would be entitled to deny effect to the Utah marriage, whatever its status. But I also think that California would be permitted to recognize the Utah marriages if it so chose.

Michael C. Dorf said...

As for TDPE's comment, I think it only applies to Justices Ginsburg, Breyer and Kagan. They were the members of the Windsor majority who nonetheless voted not to reach the merits in Perry.

Joe said...

Mr. Kaplan's question is also one of my own. I think for one thing certain states might rule that it would be unfair to deny recognition even if ultimately the law is upheld. This could rely on the law of the particular state in question.

It would be an interesting federal constitutional question. Judge Black, the Ohio judge, e.g., relied largely on the importance of retaining marriage rights that here might have resulted in various interests the couple relied upon for over a year ... depending on how long the case takes to settle.

As to not settling this in the Prop 8 case, there are lots of cases where the USSC doesn't decide everything, leaving open questions that can negatively affect others. The USSC decides things case by case with certain standing rules. Everything isn't decided all at once.

That seems to be a rather impractical view of how the courts operate, especially in our case by case at least in some fashion common law type system. Why not blame the Lawrence Court? It could have decided every question related to sexual orientation.

Ruth Bader Ginsburg could have been saved a lot of work too ... just let Reed v. Reed decide all sex classification questions. Sorry for the snark, but seems unreasonable to me. The law develops in stages.

David Ricardo said...

Joe is correct that the law as decided by the Supreme Court in most cases is evolutionary not revolutionary. But the Justices can decide how far they want to go, and whether or not to rule outside the narrow lines of a particular case, as the Court has done many times, most recently for example on campaign finance provisions.

More importantly, on major issues the Court has made definitive rulings. Brown is the most prominent example. Imagine what it would have been like had the Brown decision simply applied to the Topeka school district and the Court had told every other school district in every state that they would have to litigate segregation. In fact, had this Court been faced with Brown it is likely that would have been the outcome, with Justices Scalia, Thomas and Alito at a minimum ruling that separate but equal was sufficient and Constitutional, that segregation was legal. Loving was a similar example of a revolutionary not evolutionary decision.

Just because the Court has the right to do something doesn’t mean it was right to do it.

Keith K said...

"Ohio has taken a small step in this direction, and based on the cases so far it appears that the only basis for a state to deny recognition of some marriages performed out of state but not others is bias and animus towards same sex couples. "

What about community values? While I personally believe everyone should be able to marry, what role does the State retain in defining marriage at all in a post-Windsor world?

Kentucky refuses to recognize valid marriages of first cousins in another State - is that based on animus? Perhaps - but we allow certain animus, right?

If they aren't a class which requires strict scrutiny, then intermediate scrutiny doesn't seem like an unreachable bar for a community standard, or public policy approach.

"Imagine what it would have been like had the Brown decision simply applied to the Topeka school district and the Court had told every other school district in every state that they would have to litigate segregation."

Wasn't that exactly what happened with the Civil Rights cases which led up to the eventual passage of the Civil Rights Act of 1964?

The Supreme Court most likely is trying to hold of deciding this kind of blanket decision until momentum swings a bit more. After all, it's much easier that way.

David Ricardo said...


The prohibition of marriages between first cousins has a legitimate basis, the concern that the offspring will be genetically damaged. A person may or may not agree with that basis, but it is not illegitimate reasoning. And there is no animus whatsoever against first cousins, no history of discrimination, no history of hate. People are completely and totally free to have or to be first cousins.

As far as community values are concerned, that is an impossible standard to adjudicate. Segregation and racial discrimination used to be a community standard. In the 1930’s in the South lynching was a community standard. Organized religious services in public schools has been a community standard and in some areas still is. Nowhere in the Constitution is their any justification for legislation based on community standards.

The role of states in defining marriages is largely unchanged. The court in Utah simply said that the state of Utah (and California in Perry) cannot ban SSM unless it could demonstrate a legitimate reason to do so, and it did not. My personal opinion is that there is no Constitutional right to SSM, in fact no Constitutional right or obligation for any state to recognize marriage at all. But there is a right to equal protection under the law and a right to due process, and if a state decides to get into the marriage business and restrict marriages between certain couples, it needs a better reason than “community standards”. As a member of a religious minority I can testify first hand that some “community standards” still are bigotry and hatred and violence against people of my religion.

If Utah wants to restrict marriage to couples who are capable of reproduction, and not allow marriage between couples that cannot reproduce and dissolve any existing marriages between couples once they cannot reproduce that is probably legal even if it is bad policy. But that of course is not what Utah or California has done, even as they claim as a defense of the ban on SSM that marriage is solely for the purpose of creating a legal, reproducing couple.

As for the idea that the Court should hold off a ruling until “momentum swings” its way that also has no basis in the rule of law. The law is not interpreted as a reflection of public opinion, the law is the law whether it is popular or not. As I said earlier, if the public does not like the current law as interpreted by the courts, they have the right to change it. And if the Court in Brown had held off until there was momentum for the end of legal segregation in schools, well that might have happened when, in 1985? Would that have been ok with anybody?

Keith K said...

"The prohibition of marriages between first cousins has a legitimate basis, the concern that the offspring will be genetically damaged."

I deal with that question here:

Short answer: that's not true.
Snarky answer: there's no possibility of genetic problems with two male cousins, so if ssm is available, that's definitely not true
Longer answer: two random 40 year olds have a higher chance of genetic problems than a pair of young first cousins, but we don't limit marriage to those of a certain age range.

All of this is to say that every limit on marriage is arbitrary. Why should two brothers be treated differently under an equal protection / due process argument?

"Segregation and racial discrimination used to be a community standard. In the 1930’s in the South lynching was a community standard."

The scrutiny for marriage laws is typically intermediate, right? What you are describing with racial discrimination bumps it up due to a clear Constitutional violation. I agree that animus towards homosexuals SHOULD qualify the same way, but has any Court done that yet?

David Ricardo said...

Apologies to Keith as apparently I did not make my points as clearly as I could or should have.

I was not arguing that the prohibition against first cousin’s marrying was based on a correct interpretation of the issue, only that there was a non-discriminatory basis for someone to make the argument against marriage between first cousins. I will leave it to others to determine the merits of that argument. And while I strongly support the right of same sex couples to marry, if someone, anyone, can come up with a rationale to prohibit it other than prejudice, hatred and animus towards same sex couples then even if I do not agree that the rationale is compelling I would yield to the majority accepting that rationale. The problem with those who would oppose SSM, they have never ever come up with such a rationale, in all likelihood because there is none. But I remain open to anyone who has such a rationale.

As far as segregation is concerned, my point was not to equate SSM with racial practices that are unconstitutional, but to merely point out that if one uses a “community standards’, even if community standards could be defined one must recognize that in many cases community standards are wrong, and if they are wrong in a Constitutional sense then they cannot legally prevail.

The lower courts in California, New Mexico and now Utah have come up with a decision that says they find no rationale for banning SSM. Hence the situation we now find ourselves in.

Keith K said...

Understood - and I tend to agree.

I just wonder, when the people enact a Constitutional Amendment, such as was done in Utah - can you ever really know what was in their minds when they pulled the lever?

Even the Judge wasn't willing to say it was animus or hatred on the part of all of the voters.

What kind of test do you put forward for determining if there's a "a rationale to prohibit it other than prejudice, hatred and animus"?

David Ricardo said...

Keith raises a good point

“I just wonder, when the people enact a Constitutional Amendment, such as was done in Utah - can you ever really know what was in their minds when they pulled the lever?

Even the Judge wasn't willing to say it was animus or hatred on the part of all of the voters.

What kind of test do you put forward for determining if there's a "a rationale to prohibit it other than prejudice, hatred and animus"?”

and I think the response is the process that just happened.

The Utah law singled out a class of individuals for disparate treatment. Members of that class challenged the law in a Federal court, arguing that the law violated their rights under the U. S. Constitution because they were treated differently than opposite sex couples under the law. Utah was given the opportunity to respond, and to explain why they had a right to treat same sex couples differently and being a state government Utah certainly had the resources to respond as effectively as possible.

But in making their response the state of Utah was unable to present any rationale for the amendment other than the position that in Utah the purpose of state sanctioned marriage was to create a legal bond between a man and a woman for the purpose of developing a family, for procreating and raising children. But this argument had a fatal flaw, namely that Utah allowed marriage between any man and woman, even those that because of age or infirmities could not procreate. So Utah’s own position towards marriage defeated them in court.

As far a finding that the Utah amendment was based on animus towards same sex couples, that is basically my position. If there is no defense for disparate and damaging treatment towards a class of people, no reason to do so, no justifiable logic then one is left with the conclusion that the reason for the discriminatory treatment must be animus. What other reason can their be?

"How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?

--Sherlock Holmes

But Keith is correct, that conclusion is not necessary and does not need to be a part of the equation here. It doesn’t matter what the voters felt in their minds and their hearts. That is irrelevant. The court merely has to find that there is no compelling reason for banning SSM to render it a violation of Constitutional rights. Utah failed in its duty to defend the actions of its citizens, and that is why the decision was what it was.

Joe said...

Familial harmony was cited in a key state case from the 1980s as I recall as grounds to uphold incest barriers. This would address those involving non-blood related barriers, including foster and adopted siblings.

Classifications by sex or sexual orientation would have to meet a higher test than those by familial connection pursuant to equal protection principles. Also, the familial harmony (or genetics) is a neutral state interest that furthers the overall right involved. If the right to marry is involved, that would help meet the test there.

Judge Black in Ohio used intermediate scrutiny. The judge in Utah was open to it but argued rational basis was enough. The 2nd Cir. below in the Windsor ruling also used intermediate scrutiny. Windsor itself used a form of careful scrutiny given the animus deemed present and strange nature of the law.

Joe said...

TDPE has a good discussion of the animus point, the USSC using that word in Windsor bothering some people.

Judge Black in the Ohio marriage recognition case discussed at Volokh Conspiracy etc. carefully explained how inappropriate laws need not be based on pure "animus."

Sam Rickless said...

I think it is quite possible that what is feeding the insistence that legal marriage must be between persons of opposite sexes is not animus, but something else. I have three things in mind.

1. The visceral disgust that many heterosexuals (particularly those raised in very traditional religious communities, often older people) feel at the thought of homosexual sex. This disgust is then transferred to homosexuals as a group. The disgust then feeds a fear that the cultural acceptance of homosexuals (whether through positive depictions of gays on TV and in the movies, or through the acceptance of SSM) will lead, by a slippery slope, to behavior that will make one uncomfortable because of the visceral disgust called up by the perception of open "homosexual" behavior, such holding hands, cuddling or kissing in public, bringing same-sex partners to parties, and so on.

2. A fundamental confusion resulting from the assimilation of religious marriage and legal marriage. As a result of this confusion, many ordinary religious people think that legalizing SSM is tantamount to forcing their own religious communities to allow SS couples to marry in the faith, something they find doctrinally unacceptable. (A more sophisticated version of this holds that the cultural acceptance of SSM as a legal institution will put pressure on their own religious community to allow same-sex couples to marry in the faith. As an empirical matter, this is probably correct.)

3. The belief, fed by some religious doctrines, that sexual relations between persons of the same sex is soul-corrupting (a grave sin in the eyes of God). Inasmuch as the legalization of SSM represents the cultural acceptance and encouragement of sin, it is itself a form of offense against God.

Clearly none of (1)-(3) functions as an acceptable *reason* to deny same-sex couples the right to enter into legal marriages. (1) and (2) are psychological *explanations* of the widespread opposition to the legalization of SSM. Legally speaking, they have no merit as reasons. The same is true of (3), which presupposes that laws should reflect particular religious doctrines.

Still, I just don't think that the argument (accepted by Justice Kennedy and by TDPE here) that animus is driving the opposition to the legalization of SSM is correct. The situation is almost certainly more complicated than that.

Joe said...

"Animus" is defined at Merriam Webster as "a strong feeling of dislike or hatred" ... some "visceral disgust" at a basic expression of attraction by same sex couples seems to fit.

#2 is applied unevenly -- there are various types of marriages that violate religious belief, including a strict understanding of Jesus' ban on divorce.

Singling out same sex couples is explained how? If you press the opponents, repeatedly, #1 is a key motivator. Same sex behavior is particularly distasteful. Animus is shown. If it is seen as deeply sinful, e.g., this is pretty understandable. We dislike sin.

#3 says some think it is "soul-corrupting" ... first, that is a religious argument. Second, again, if we look closely, the reason this particular sinful activity is being targeted is repeatedly a matter of distaste. And, "soul corrupting" is the sort of moral "dislike" animus could include.

Windsor clarifies. It says "determining whether a law is motived by an improper animus or purpose" is at issue here. The last paragraph of the opinion says this again -- "no legitimate purpose." So, it isn't purely animus anyway. Arguments based on souls won't work either.

Resting merely on "animus" is a bit simplistic, yes, but in context, not only is animus likely shown, but Kennedy means something a bit more complex than some make it out to be anyway.

Funny Games said...
This comment has been removed by the author.
Funny Games said...

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Court had told every other school district in every state that they would have to litigate segregation.

Unknown said...


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Unknown said...

How is that possible? If you were granted a preliminary injunction based on a district court ruling, doesn't this become common law for the parties involved?

Unless specifically stated by the Courts, aren't all ruling proactive not retroactive? So if a higher court reversed the decision, the act becomes unconstitutional from this day forward.

If this is not the case, then wouldn't huge companies refile civil cases in another venue when the law becomes more favorable to them.