Tuesday, December 24, 2013

Was the 10th Circuit Correct Not To Stay the District Court SSM Ruling?

By Mike Dorf

This being Christmas Eve, I'm only going to put up a very short post on this very important topic.

The 10th Circuit has denied the State of Utah's emergency motion to stay the district court judgment invalidating Utah's ban on same-sex marriage, with the consequence that Utah now has SSM.  The state could seek (and by the time you read this perhaps already will have sought) emergency review by the Supreme Court. The ordinary procedure would be to seek relief from the Circuit Justice--in this case Justice Sotomayor--who, in a case as important as this, would likely refer the application to the full Court.

In my view, this is one of those rare cases in which the correct moral outcome is also the correct legal outcome, but is still wrong.  I should explain.

Permitting marriages to go forward is correct morally for the innumerable reasons why it is simply unfair, unequal and unjust to deny people the right to marry based on sex or sexual orientation or the fact that they are unlikely to produce children accidentally or whatever other stupid rationalization is now being offered to support a policy that, at this point, must be recognized as simply a product of prejudice.

Permitting marriages to go forward is the correct legal outcome because one of the necessary conditions for extraordinary relief is that the party seeking such relief--here the state of Utah--be able to show a substantial likelihood of success on the merits.  Given Windsor (the DOMA case), as explicated by the district court opinion, the state has not done so.

Nonetheless, I think that the district judge should have stayed his judgment and that, once he failed to, the 10th Circuit ought to have stayed his judgment because only a fool can confidently predict exactly what the Supreme Court will do in this case. I think the Court will probably affirm--leading to legalized SSM nationwide--but it's pretty clear that even the five Justices who are sympathetic to SSM would rather take a few years before getting there.  If their hand is forced, as it now will be, it's impossible to say with certainty what they'll do.

Thus, there is a real chance--less than 50/50 but I would say above 10%--that either the 10th Circuit or the Supreme Court will say that Utah is not obligated to permit SSM.  If that happens, then the Utah same-sex couples who married in the interim will find that their marriages have been voided, leading to heartbreak and chaos.  And by contrast with California after Prop 8, the Utah Supreme Court probably will not "grandfather" those marriages.

That would be a truly awful result--and one that can be avoided if the district court ruling is stayed for the months or even year and a half it will take to fully litigate the case.  I realize the oddity of arguing for an outcome that I regard as both morally odious (because justice delayed is justice denied) and legally wrong (the standard being what it is), but in this case that is where I find myself.

Perhaps my concern would be sufficiently mitigated if all of the couples who are now marrying in Utah were told that their marriages might not last.  I doubt very much that they will be given such a warning--but maybe, just maybe, they don't need one.  Maybe these couples are marrying as a form of political activisim, in much the way that SF couples married pursuant to Gavin Newsom's 2004 decree.  If so, then I recant and I applaud the district court and the appeals court for following the law.

15 comments:

The Dismal Political Economist said...

There would be greater support for Mr. Dorf's position had an appeals court not allowed Texas's anti-abortion rights laws to go into effect despite a pending appeal and the possibility if not the liklihood that they would be overturned.

jim green said...

The court must weigh a contingent, intangible harm (emotional heartbreak) against a present, quantifiable harm (immediate federal & state benefits, intestacy laws, presumed guardianship, immigration rights, etc.) and I think the courts made the correct decision. Also, even if the plaintiffs lose, there is still the possibility that the Court could craft a decision that grandfathered any interim marriages without having to punt it back to the state courts.

Gray Peterson said...

That would be a truly awful result--and one that can be avoided if the district court ruling is stayed for the months or even year and a half it will take to fully litigate the case. I realize the oddity of arguing for an outcome that I regard as both morally odious (because justice delayed is justice denied) and legally wrong (the standard being what it is), but in this case that is where I find myself.

One half of one of the plaintiff couples is dying of a terminal illness and may be dead by the time this was resolved. This tilted the irreparable harm in favor of the plaintiffs (who were already married in another jurisdiction and would not get state death certificate listings or benefits).

Perhaps my concern would be sufficiently mitigated if all of the couples who are now marrying in Utah were told that their marriages might not last. I doubt very much that they will be given such a warning--but maybe, just maybe, they don't need one. Maybe these couples are marrying as a form of political activisim, in much the way that SF couples married pursuant to Gavin Newsom's 2004 decree. If so, then I recant and I applaud the district court and the appeals court for following the law.

Every gay SLC couple is quite aware of the potential of a stay and an overturn. They are doing it anyway.

Rick said...

If the outcome is both legally and morally correct, then I don’t understand in what sense Professor Dorf thinks it is wrong.

“Maybe these couples are marrying as a form of political activisim.” WOW marriage has become somewhat of a protest?! This really begs the question what a marriage truly means for same sex couples. If it’s a form of political activisim, any two persons of the same gender should get married.

I guess courts, in denying stays, have come to understand that same sex marriage means much more than a political point of view.

Michael C. Dorf said...

I did not invent the idea of same-sex marriage under conditions of legal uncertainty as a form of political protest (albeit also a wedding that the participants desperately and legitimately hope will be treated as a legal act). In Tactical Repertoires, Same-Sex Weddings, and the Impact on Gay Activism." American Sociological Review 74:865-886, Verta Taylor et al describe the weddings in 2004 in response to Gavin Newsom's decree as "same-sex wedding protests".

On the broader question, another way to express my uneasiness is this: I think the legal standard for extraordinary relief is wrong insofar as it requires BOTH likelihood of success on the merits and irreparable injury. I think that in some circumstances, something like a realistic possibility of success on the merits (though less than 50/50), coupled with the balance of the equities, warrants such relief. This is a GENERAL point, having nothing to do with the particulars of this case. As should be abundantly clear from this and everything else I've written on this subject, I think there is and ought to be a constitutional right of same-sex couples to marry.

Joe said...

The rule for stays, to my understanding, is a four part test. The test was applied in some cases that are of particular public interest in recent days (e.g., the abortion ruling in Texas).

To me, it looks like there is some flexibility to the test, and it appears to be something of a balancing test. At least, it could be. If so, Prof. Dorf's concerns would seem to allow a stay as a matter of prudential policy which is a factor in judicial action (see, e.g., Windsor itself).

I like him has a sort of heart/mind battle going on here. I personally think that there is a serious argument in staying the case. Yes, I know the concern about delaying justice. It is somewhat less compelling given 17 states besides Utah allow SSM and (one loses count) perhaps some other recognizes them. But, I realize it.

Still, SSM in UTAH (and the refusal of a stay will surely influence other 10th Cir. district court judges) of all places is pretty serious business. I am not appalled that federal courts are used to enjoy rights. But, it in cases like this, there is some prudence in doing so with some deliberate speed.

Unlike Brown, this won't be a decade or more. California was a different situation in certain respects, but I think the process worked there. This time, it won't take that long. Still, my heart supports the 10th Cir. action too, while my head is not to upset if the law is fairly followed.

Still ...

Rick said...

As we approach 2014, the 2004 American Sociological Review article is dated both in terms of time and our current understanding of same-sex marriage. It is therefore a relic whose relevance has long passed its day. Still, even those who support same-sex marriage view it as a novelty, something different from traditional marriage, questioning the motivation of same sex couple to get married in the first place. Did they get married to protect? Did they receive full warning about the legal uncertainty of their marriage? Did they truly understand their marriage might not last? But if one truly understands same-sex marriage, he should also understand that gay people, just like straight people, marry for love, for commitment, and for legal protections (which some elder and unwell couples desperately need now).

We don’t ask an interracial couple if they get married to promote racial equality. Every couple who get married take the same wedding vows. That is what a marriage means, whether black or white, gay or straight.

The standard for relief requires “a strong showing” of the likelihood of success on the merits, and the standard for a Supreme Court stay is even higher. If there is a constitutional right to same-sex marriage, then the State of Utah certainly cannot meet those standards. Whether the current standard is right or wrong, Professor Dorf’s essay, read as a whole, does not make a general point that applies to all cases; rather, it seems to show that his concerns for the inappropriateness of the standard are magnified in the case of same-sex marriage. But is same-sex marriage really all that different from other cases seeking a stay?

Joe said...

Prof. Dorf's comments are applied to a certain context, but I don't personally think the general concern regarding effects cannot be applied to other cases too.

As to the test, the stay of the district court ruling regarding the Texas abortion law split the USSC 5-4. Realistically, there is some play in the joints in actual cases.

Scotty Austin said...

I am following Utah because of my parallel. My Husband and I are residents of Texas, Austin. Married in California. We don't have equal rights in the State but do in our County & City and now Federal. SLC will do the same, do not despair, you will prevail.

Trey Allen said...

Thank you Prof. Dorf for a well reasoned dilemma about being in favor or being opposed to the stays. Also you discuss these issues in full transparency, even revealing your preference for an outcome.
Also notable is the honest and critical but not emotional or sensational comments left by people who are voicing their legal analysis; instead of partisan and religious opinions.
Thanks for helping me grasp the depth of the subject. I look forward to following your work on this subject. Many LGBTQ people are closely following the situation.
Happy new year,
Trey Allen

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

To me, it looks like there is some flexibility to the test, and it appears to be something of a balancing test. At least, it could be. FIFA 14 Coins | Elo Boost
If so, Prof. Dorf's concerns would seem to allow a stay as a matter of prudential policy which is a factor in judicial action (see, e.g., Windsor itself).

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