Thursday, December 26, 2013

Utah SSM Case Headed to the SCOTUS But Only For a Short Stay?

By Mike Dorf

Adam Liptak reports in the NY Times that Utah will indeed ask the Supreme Court to stay the district court judgment invalidating the state's same-sex marriage ban.  The article, which quotes me and my most recent blog post on the topic, focuses on the incredibly rapid pace of change with respect to SSM since the Supreme Court's decisions in June in Windsor and Perry.  Those changes suggest that if the Supreme Court could manage to avoid deciding the issue for just another couple of years, the case will be a mopping-up operation like Loving v. Virginia rather than a controversial decision on an issue that deeply divides the country, like Brown v. Board or Roe v. Wade.

In my earlier post I explained why I think that a stay is probably warranted, even though I think the district court decision was correct.  Here I'll add one other consideration that is not, strictly speaking, a legal consideration.  Ideally, the Court will either grant or deny a stay in a way that ensures that the case remains in the 10th Circuit for at least another couple of months.  Then, if the Supreme Court grants cert, the case won't be heard until next Term, which would delay a SCOTUS ruling until around June 2015.  Given the incredibly rapid pace of change, it's quite possible that by then SSM will be lawful in a clear majority of states, so that a SCOTUS ruling requiring SSM throughout the country could be greeted with a yawn.

It's not at all clear to me that the Court's decision whether to grant or deny a stay in the Utah case will affect the timing of the 10th Circuit litigation.  Indeed, I think just about anything the Court does--short of the unlikely and extraordinary step of granting certiorari immediately--will keep the merits out of the Court until next Term.

That said, if the Court denies a stay, that will be a pretty strong signal that five Justices are prepared to find a right to SSM; by contrast, if the Court grants a stay, that will not necessarily signal much of anything, especially if one of the Windsor majority Justices (I nominate Justice Sotomayor, as the Circuit Justice) writes a concurrence explaining the difference between a stay to preserve the status quo and a decision on the merits.

15 comments:

KC Johnson said...

The Salt Lake Tribune reported tonight (http://www.sltrib.com/sltrib/news/57310957-78/county-sex-marriages-couples.html.csp) that in the week since the ruling, more than 900 same-sex couples already have married in Utah, an amazing number given Utah's size.

At this point, wouldn't the effect of a stay be almost solely symbolic (assuming that most gay or lesbian couples who wanted to get married now have already done so)? Or would Utah try to use a stay to not only stop granting marriage licenses but also to refuse to recognize this week's marriages as the appeals proceed?

The Dismal Political Economist said...

Some authorities have stated that even if the Utah ban is ultimately upheld that the existing marriages would remain valid.

Apparently that was the case in California after the Amendment was passed.

Can Mr. Dorf and/or others comment on whether or not there is the possibility that upholding the ban would not affect existing SSM that were entered into on a legal basis.

Keith Kaplan said...

Dismal,

In The Conservative Case for Gay Marriage, Ted Olson addresses that point as it applied to California:

"Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court's ruling that upheld gay-marriage rights and the decision of California's citizens to withdraw those rights by enacting Proposition 8.

So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand."

Keith Kaplan said...

Sorry - forgot a link. I could only find a cached version: https://web.archive.org/web/20100114045829/http://www.newsweek.com/id/229957/page/1

Rick said...

Great analysis!

Michael C. Dorf said...

The California case was completely different. In Case 1, the Cal Sup Ct said that SSM was required under the state constitution. Then the voters passed Prop 8. Then in Case 2 the Cal Sup Ct said that the voters had the power to enact Prop 8, but that it wasn't retroactive. Put differently, Prop 8 did not say that Case 1 was wrong; it amended the state constitution.

By contrast, if the 10th Circuit or the SCOTUS reverses the district court, it will be saying that the district court was wrong to require SSM in Utah. The same-sex couples who married in the interim will be required to give up what they gained, just as any litigant who wins in the district court only to have the judgment reversed on appeal must give up what he or she won.

There is some limited authority for a "grandfathering" in circumstances in which a plaintiff--in reliance on a district court ruling that a state criminal law is unconstitutional--violates that law, only to have the ruling reversed on appeal. But in those cases there is a worry about due process notice that is absent here.

Meanwhile, I agree that the large number of marriages that have already occurred may moot my concern. And I don't think a stay would apply to them--although in theory it could.

I'll return to this topic next week.

Shag from Brookline said...

This portion of the post:

" ... rather than a controversial decision on an issue that deeply divides the country, like Brown v. Board or Roe v. Wade."

is curious to me. Roe continues to divide the country. Brown did likewise for a number of years. Roe is challenged directly from time to time. But who directly challenges Brown today? Some originalists claim that originalism supports Brown. Yes, there remain racial issues spawned by Brown to the present. While the Roe divide may be aimed at overturning Roe, is there any realistic movement to overturning Brown? I think not.

Michael C. Dorf said...

I meant controversial at the time of decision. I agree that Brown is not controversial today (although there is a live dispute about its meaning: See Parents Involved case).

Joe said...

An update:

Same-sex marriage is banned by constitutional amendment or state law in: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin and Wyoming.

http://www.cnn.com/2013/12/23/us/utah-same-sex-marriage/

A district court ruled against the law in Ohio on a limited basis, but noted in a footnote that it was logically a problem across the board. Still, a "clear majority" will require change in some fairly conservative states. But, if a federal judge in Utah thinks SSM is protected, I guess some state courts will too.

Be interesting to see what one of the hard cases will fall. A NYT article, e.g., flagged Indiana as a battleground.

Rick said...

If the due process concern is absent in case the SSM judgment is reversed on appeal, could the equity or undue hardship doctrine be raised? Married couples make all sorts of legal arrangements based on their marital status.

Let’s say a gay American citizen sponsors his foreign spouse for residency. While the application is pending, SCOTUS reverses. The application is pulled and the foreign spouse is placed in deportation proceeding. Or as another example, one spouse faces an ongoing criminal trial and the other spouse has intended to but is now prevented from asserting spousal privilege as a result of the reversal. In those cases, there seems to be a strong due process argument.

On a related note, the State of Utah has thumbed its nose at 10th Circuit by repeatedly suggesting in the papers that only SCOTUS could tell it what to do and 10th Circuit is merely a step to go through the appeal process. I suspect that is why 10th Circuit quickly said OK, here is our ruling now you can take it to the supreme court.

Jet Li said...

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


By contrast, if the 10th Circuit or the SCOTUS reverses the district court, it will be saying that the district court was wrong to require SSM in Utah. The same-sex LOL Elo Boost | FUT 14 Coins
couples who married in the interim will be required to give up what they gained, just as any litigant who wins in the district court only to have the judgment reversed on appeal must give up what he or she won.

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