by Mike Dorf
As I noted in my last post, I wrote it hurriedly. I noted two possible justifications for the Holder position: One, which I like but clearly is not the justification they're using, is that there is a constitutional right to same-sex marriage throughout the country; the other, which I said they must be using, is that the SCOTUS order impliedly meant that the interim marriages are valid pendente lite. I've been thinking a bit more about this and now want to add three more theories, which I'll call theories 3, 4 and 5. They are:
3) The Utah Governor misunderstood Utah law. Under this theory, the SCOTUS did leave the status of the interim marriages to Utah law, but the Governor, in treating them as (mostly) not valid pendente lite, misunderstood Utah law. This is not entirely crazy. Following Windsor, federal law incorporates the state law meaning of marriage, but while federal courts and other federal bodies generally take a State Supreme Court judgment as definitive of state law, they don't necessarily take a state executive pronouncement as definitive.
4) The Utah Governor gets to say whether the interim marriages are valid pendente lite, but he did not in fact treat the marriages as void; he simply said that they won't be recognized for various purposes but will have consequences for some other purposes; so Utah law, even as construed by the Governor, in some sense still treats the interim marriages as valid, and federal law piggybacks on that.
5) The validity of the interim marriages pendente lite is a question of federal law, but the SCOTUS did not address that question in its order. Accordingly, the federal executive gets to fill in the gap, at least with respect to areas within federal executive competence.
Did the Justice Dep't actually contemplate any of these theories? Are they persuasive? I'll leave these and other questions for readers to debate.