Friday, January 10, 2014

Three More Theories to Justify the Holder Decision Re Utah Interim Same-Sex Marriages

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.

22 comments:

Paul Scott said...

1 is the answer I would like to have seen, but that was clearly lacking.

4, however, seems to me to be a position the Federal government is required to take even if it were hostile to SSM. I suspect that is what is going on here.

Keith Kaplan said...

I have a question on number 3. Even assuming that the Federal Government doesn't have to take the opinion of an executive, I'd imagine that they would have to take the opinion of a State Court in Utah.

Since the SCOTUS stay reverts this back to the status quo, which was a Constitutional Amendment, as opposed to a statute, would it be possible for a Court in Utah to find a Constitutional Amendment unconstitutional?

I agree that 4 and 5 work as a legitimate way, until SCOTUS clears it up.

Michael C. Dorf said...

Certainly a state court could find the state constitutional amendment to be a violation of the federal Constitution. I take it you're asking whether a state court could find that a state constitutional amendment violates the state constitution. Maybe. In California, Prop 8 was unsuccessfully challenged on the ground that it was not a mere amendment but the sort of wholesale revision that required a different procedure. The challenge failed but in a different case it might succeed. In some other countries--notably Germany, Turkey, India, and Pakistan--the constitutional court has the power (or has given itself the power) to declare constitutional amendments to be invalid on grounds that certain propositions are unchangeable. I doubt the Utah Supreme Court would assert that power, though.

The Dismal Political Economist said...

Mr. Dorf has presented some interesting, somewhat unique and certainly valid propositions as to the rationale of why the Federal government might recognize the Utah marriages. Number 4 now leads to a discussion of the meaning of “void” vs “not recognized” with respect to SSM. And certainly Mr. Dorf’s positions 4 and 5 are reasonable.

So now in addition to a lack of information and positions by the Supreme Court in its stay order, correctly and accurately criticized by Mr. Dorf, we have a lack of information and position by DOJ in their announcement that they would recognize marriages not recognized by Utah. Good grief.

And let me raise the question again about standing. Is there any party that has standing to initiate a cause against DOJ for recognizing Utah’s SSM, or are we left with just an academic question here, specifically, that DOJ may or may not have the legal authority to recognize the SSM in Utah but it doesn’t matter since they can do whatever they want to anyway without any court or jurisdiction or petitioner challenging them.

Keith Kaplan said...

I was - and thanks. Fascinating topic (unless you're one of those in limbo, of course).

Brunonian said...

How about option 6, the marriages were valid in the state of celebration at the time of celebration, but are no longer valid in the state of domicile, which just so happens to be the state of celebration. I believe the federal government treats marriages as valid if they were valid when celebrated--I do not think they have to remain valid where celebrated for this to be the case, in which case this is just as if all the Utah SSM couples had moved to Texas pendente lite.

Michael C. Dorf said...

Brunonian's theory is quite ingenious--although, like some of my theories, it only works on the assumption that the Supreme Court order did not mean that the interim marriages are invalid or that their validity is purely a matter of state law.

Michael Ejercito said...

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.
does this mean that the New Mexico same-sex marriages were not recognized under federal law prior to the New Mexico supreme Court ruling? does this mean any same-sex marriages in new Jersey are not recognized by federal law, since the New Jersey Supreme Court never ruled in this issue?

Michael C. Dorf said...

To clarify in response to Michael Ejercito: I was borrowing from the case law--mostly under the Erie doctrine--regarding how federal courts determine the content of state law, and assuming that the federal executive would follow the same procedure. When there is no state supreme court ruling on an issue of state law, federal courts discern the content of state law by predicting, based on lower court rulings and other materials, how the state supreme court would decide the issue. Those other materials could include state executive pronouncements, but such pronouncements are only persuasive authority on the meaning of state law, not binding authority in the way that a state supreme court ruling is.

Michael Ejercito said...

No doubt that was why the New Mexico same-sex marriage plaintiffs sought a Supreme Court ruling, to pave the way for federal recognition.

Melanie Wilson said...

I think in New Mexico the county clerks, not the plaintiffs, sought a Supreme Court ruling. The plaintiffs seemed perfectly happy with the lower-court victories, since there weren't any stays in the case.

Unlike in Utah, though, I don't believe that even the Republican governor floated the idea of the state not recognizing the marriages.

Keith Kaplan said...

Can I get a point of clarification on how other States "recognize" a marriage performed in another State?

I live in NJ. If I travel to AZ and need to make a medical decision for my wife, I'm going to be "recognized" as married, right? It clearly doesn't require any filing of a certificate or official act in a clerk's office. So when these marriages were performed, do they need to "do" anything before another State recognized the ceremony and the couples as married?

Can the Federal Government say - "CA or NJ recognizes these types of marriages" and therefore we recognize them as well?

Is that too far of a stretch?

Michael C. Dorf said...

Keith, you are right that in general one can relocate to another state and have one's marriage recognized automatically. Indeed, one need not relocate at all. A couple who reside in, say, Indiana, can celebrate their marriage in Illinois, and it's valid in Indiana. The catch with respect to SSM is at this point no state that doesn't itself have SSM fully recognizes SSM from another state. Some such states give partial recognition, and in Ohio a federal trial court ruling gives some recognition to out-of-state SSM. At least until Section 3 of the Defense of Marriage Act is held invalid, states can deny recognition to out-of-state SSMs.

The Dismal Political Economist said...

@ Keith

As far as the Fed recognizing marriages that states do not, my previous point is that if no one has standng to challenge the Feds, like apparently no on has standing to challenge them on the recognition of the Utah marriages, then it doesn't matter.

The Federal government, it would appear, can recognize any marriages they want to. In America, just because something isn't legal doesn't mean the government cannot do it.

Keith Kaplan said...

Right - I'm saying

A) if a State that does have full SSM equality (like NJ) automatically recognizes other SS marriages, like those performed in UT

and

B) one doesn't need to do any affirmative act in order to get that recognition

Can't the federal government say that the recognition of these 1200+ marriages by NJ means that we have no choice but to recognize them as well.

Michael Ejercito said...

Congress determines how the feds recognize marriage. They could very well have recognized marriage based on mere possession of a marriage license and evidence of solemnization, even if it had no statewide recognition from he state where it was issued nor whether it was erroneously issued. This does not appear what Congress mandated, though.

scipio07876 said...

Clearly you are grasping at straws to justify a DOJ decision without any legla basis instead of providing an objective legal analysis. Your hurried post seemed to suggest that because California decided to recognize interim marriages that this can be used to say that Utah should have as well. The fact of the matter though is that Utah doesn't. A governor has the right to interpret state law the DOJ doesn't have a right to interpret state law. The governor's interpretation is based on a Constitutional provison explicitly banning gay marriage so it is a sound interpretation. The interim period in California was an interim between gay marriage being legal under state law and the passing of an amendment barring gay marriage. The marriages in Utah in contrast were performed while Utah law explicitly barred gay marriage. The marriages were performed contrary to Utah law because a judge decided federal law required Utah to permit gay marriage. He should have stayed his decision but refused to do so and it took time before the stay was ripe for the US Supreme Court to take up. There wa sno change in Utah law law after the marriages were performed. Utah simply was alloed to enforce its own law that a judge said could not be enforced. On appeal there are ultimately 2 outcomes. The appellate Court(s) with either decided that federal law bars states from refusing to allow gay marriag or that federal law doesn't bar states from refusing to allow gay marriage. If the latter then it means the initial judge improperly ordered Utah to allow gay marriage. Those inerim marriages that wer eperformed will have been performed contrary to state law simply because a federal judge misinterpreted federal law. There is no way to argue that due process requires regonizing gay marriages performed contrary to law because a judge erroenously ordered it. The stay of the lower court's decision means Utah law is back in effect and that the marriages performed in violation of it are not recognized. The DOJ has no legal basis to decide to reconize the interim marriages unless an appeal court decides that federal law forces states to allow gay marriage. Since you have a horse in the race you seem not to care about objective legal reasoning.

scipio07876 said...

I looked in more detail at the decision of the state to freeze things and not yet totally reverse the process. The state is not going to grant tax rights and so forth to the interim couples. The types of things the state decided not to reverse were things like not to take back driver licenses issued in the last name of a spouse. The state is not allowing anymore applications of any kind to be processed things sit exactly where they are until final disposition.

The DOJ allowing federal applications for benefits and favorable tax treatment etc is exactly the kind of thing the state is not recognizing and permitting the interim couples to apply for. If you want to argue the DOJ is piggybacking the state action they need to not do anything further on behalf of the interim couples until the appeal court rules.

The reason for not outright voiding the marriages immediately is that it would force people to get new driver licenses and so forth. Furthermore, if an appeal court ends up forcing Utah to allow gay marriage it would be ridiculous that the people would have to remarry again etc so just a freeze is best. That is why the decision should have been stayed in the first place.

The temporary status of the interim marriages isn't very important, the ultimate disposition is. It is pretty obvious that if the judge's ruling is reversed on appeal that Utah is not going to recognize the interim marriages, to voide them and to declare they occurred contrary to Utah law. If the governor inteded to recognize the interim marriages in full even if he wins the appeal then there would be no reaosn to stop the interim marriage partners for continuing to change their last names, apply for benefits etc. It is obvious that if the outcome on appeal upholds Utah law the interim marriages will be scrapped but if Utah law is against struck down then the interim marrages will be recognized as will subsequent gay marriages.

Constitutions can be amended to confer or take away rights. It makes no sense to say a state must grant a certain set of benefits till death even if a fundamental constitutional change is made. Particularly where the change is to restore the status quo where a court drastically altered exisitng law to something not intended.

In any event the legal issues are different between California's interim marriages and Utah's. The interim California marriages did not take place during the pendency of an appeal where the higher court reversed. The marriages occurred after the highest court ruled the state constitution required granting gay marriage. The constitution was then amended to explicitly ban it from that point forward but was silent as to the status of the interim marriages. The court held that the amendment had to explicitly void the interim marriages for the to be considered void.

The constitutional ban already was in place before the marriages in utah occurred. That ban is the very subject of the court case. The State Constitution clearly says these marriages were not permitted and if the judge is reversed then these marriages erroneously occurred because a federal judge incorrectly ruled Utah's ban violated federal law.

The question to you is on what basis could the DOJ decided to continue to recognize interim marriages that occurred in contravention to state law simply because a judge incorrectly ruled that valid state law violated federal law? That is the bigger picture.

scipio07876 said...

I have noticed that many people in their comments are ignoring something obvious.

This isn't a situation where there is ambiguity about Utah's marriage laws and where court interpretation is needed to determine what Utah law says.

There is no ambiguity, Utah law expressly bans performance and recognition of same-sex marriages.

A federal judge ruled that this state constitutional prohibition violates federal law and that federal law requires states to permit same-gender marriages. The US Supreme Court has issued a stay of that ruling meaning that ruling is not legally binding and to be enforced. Thus the Supreme Court ruled that Utah's ban is valid enforceable law until an appeal court says otherwise.

Utah requested a stay immediately. That request was rejected. The rejection was appealed to the Suprrme Court which effectively ruled the stay should have been granted and the interim marriages should not have occurred.

Under this backdrop it is not reasonable to say that well the marriages were legal under Utah law. They weren't they came about by striking Utah law but that law was restored for now.

Utah is not granting any favorable tax treatment or the like to these couples but is not tkaing away minor incidentals that were granted before the stay. The DOJ should do the same and not grant anything from this point forward till the appeal it deicded. If the appeal is decided in favor of utah and thus the marriages are voided then what happens? Do they have to refile their taxes for the year? Legally they should, there was no basis under federal law to file jointly where their marriages were performed contrary to state law because of a federal judge overstepped his authority.

Evin Terna said...
This comment has been removed by the author.
Evin Terna said...

In some other countries--notably Germany, Turkey, India, and Pakistan--the constitutional court has the power (or has given itself the power) to declare constitutional amendments to be invalid on grounds that certain propositions are unchangeable. I doubt the Utah Supreme Court would assert that power, though. http://fifa14.mmo18.com/ | lol.mmo18.com

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