By Mike Dorf
The two-sentence order by the Supreme Court staying the district court's permanent injunction against Utah's same-sex marriage ban does not expressly say anything about the status of the 900+ same-sex marriages that were performed between the district court's issuance of the injunction and the Supreme Court's stay of that injunction. So, what is their status?
As I explained in an earlier post, if the final outcome of the litigation is the upholding of the Utah law banning SSM, then, so far as federal law is concerned, Utah will be permitted to treat those marriages as void--at least from then on. During the segment of HuffPost Live on which I appeared yesterday, Neomi Rao suggested that due process might provide some protection to such couples against having the state take away the benefits of marriage once having conferred them, but if so, I think that's only true in a very limited sense: A party acting under court order cannot reasonably be held to be making any sort of promise, so if the court order is later reversed, the only lingering effect it has is the effect necessitated by due process concerns for notice--and as my earlier post explained, those are minimal outside the context of a criminal case.
In any event, I'm going to assume I'm right that the state would not have a federal constitutional obligation to "grandfather" marriages performed under a subsequently reversed court order. Here I want to focus on the status of the 900+ marriages during the continuing pendency of this litigation, which could last through June 2015 or even longer.
Why? If the 10th Circuit affirms the district court ruling then the SCOTUS will probably grant cert. After all, the Court granted cert in the Prop 8 case and a federal court ruling requiring SSM in Utah seems like a bigger deal than one requiring SSM in California. California would have almost certainly repealed Prop 8 in a few years, whereas it could be a very long time before the politics of Utah would mean that state gets SSM through state measures. Under the expedited briefing schedule in the 10th Circuit, briefs are due at the end of February, meaning that there's no way the 10th Circuit could decide the case in time for it to make it to the SCOTUS this Term. At the earliest, it would be argued in the fall of this year and probably handed down at the end of next Term in June 2015. Indeed, it's possible that en banc review in the 10th Circuit could delay the case so much that the SCOTUS wouldn't decide it until June 2016.
That's a long time for the 900+ marriages to remain in limbo. So are they valid pendente lite or not?
The first thing to note is that the Supreme Court could have--and should have--resolved this question with its order. It could have added a couple of lines specifying that these marriages either are or are not to be treated as valid in the interim. My own view is that, even if the Court was right to stay the judgment with respect to Utah same-sex couples who haven't married yet, it should have said that the already-married 900+ couples should be treated as legally married pendente lite. After all, part of the rationale for staying the judgment is to avoid having couples marry but then be told that their marriages are invalid. That rationale doesn't apply to the 900+ because declaring their marriages void pendente lite inflicts the very harm that a stay is meant to avoid. But even if the Court disagreed with me about that point, it could have said so expressly, rather than leaving Utah citizens and the state uncertain about the legal status of their marriages.
I don't know why the Court didn't expressly resolve this issue but I have a pretty good guess: I suspect that the Justices could not achieve unanimity on this point and so they compromised on an ambiguous ruling. How should the ruling be construed? There are a number of possibilities.
1) We might try to figure out whether the Court's order "leans" one way or another on the 900+. The order states that it grants the stay for which Utah applied, so we might then look to Utah's application. Looking at that application, however, we find that it is just as unclear about whether the state was seeking to have the already-performed same-sex marriages dissolved pendente lite. One might think that of course that's what the state wanted, but it's not so simple, because the state cited the difficulty of "unwinding" same-sex marriages as a reason for the stay; as noted above, that reason cuts in the opposite direction with respect to same-sex couples who have already married. Accordingly, I conclude that the order is truly silent on the question of what effect the already-performed marriages have.
2) Is there some background presumption? Maybe. I haven't looked deeply into the law of stays pendente lite, but I did discuss this with a knowledgeable colleague and we both concluded that the circumstances of various cases would be sufficiently different that it would be hard to state as a general matter that a stay pendente lite has one effect or another on conduct that occurred after the initial ruling but before the stay. If someone knows of direct authority on this question, I'd be grateful for it.
3) Assuming that there is no standard background assumption, Utah is certainly free on its own accord to treat the 900+ couples as married pendente lite. That would be the right thing to do, in my view, but I doubt that the politics will allow it.
4) Assuming that Utah does not treat the 900+ marriages as valid pendente lite, I see no reason why one of the couples could not bring a new suit to have their marriage treated as valid (and thus entitling them to various state benefits reserved for married couples). At that point, the question of the effect of the Supreme Court's order on the 900+ would be a question of federal law. (The effect of a judgment is determined by the law of the rendering jurisdiction--here federal--even if the effect is measured in the court of a different jurisdiction--such as a state court.)
5) One intriguing possibility is that the federal law answer is that the state courts should decide the question as a matter of state law. (This is similar to body of federal law, mostly in the commercial context, in which federal law incorporates state law.)
6) Another possibility would be for whatever court faces these new cases to decide what the SCOTUS should have decided yesterday. I.e., a court could read the order and conclude that the Supreme Court really said nothing about the 900+ same-sex couples but that the right answer to the question is that their marriages are preserved pendente lite. I think that's my preferred solution. We'll see if it happens.