Tuesday, January 07, 2014

What Now for the 900+ Utah Same-Sex Marriages that Occurred Before the SCOTUS Granted Its Stay?

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  California would have almost certainly repealed Prop 8 in a few years, whereas it could be a very long time before the politics of Utah would mean that state gets SSM through state measures.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.


kcjohnson9 said...
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JHW said...

I don't see why you think the Supreme Court order is ambiguous. The Supreme Court order restores the legal regime that prevailed before the district court injunction went into effect; Amendment 3 is fully enforceable. It doesn't clarify what happens to the marriages because that's a question of Utah law at this point. Explicit reference to them would only have been necessary if the Supreme Court had wanted to protect them itself, presumably by keeping Judge Shelby's ruling in effect with respect to them, but it chose not to do that.

kcjohnson9 said...

According to the Fox SLC station, the total wound up being 1360 licenses (https://twitter.com/BenWinslow/status/420330343481102336).

If Utah refuses to treat the marriages as valid, the litigation challenging the move would go back before Judge Shelby, correct? And is it possible that the Utah state government could refuse to honor the marriages but that the federal government will?

[Corrected typo from deleted comment...)

Paul Scott said...

http://tinyurl.com/n7z82xq - Mike on HuffPost live.

egarber said...

Does the SCOTUS action signal anything about the merits? Aren't stays typically issued when there is likely success upon appeal?

Melanie Wilson said...


I agree. The plaintiffs made clear in their filing that under these circumstances (district court denying stay, Court of Appeals denying stay, Court of Appeals agreeing to expedited review) that relevant precedent recommended a say only in cases of clear error. Hard to see the stay as anything other than a message to the 10th Circuit to overturn the district court, so the marriages will be invalidated by spring one way or the other.

Keith K said...

How would it work to bring the case before a State Court?

While the Stay is in effect, would a State Court be able to find a Constitutional Amendment unconstitutional?

David Ricardo said...

Mr. Dorf is absolutely correct here in that the Supreme Court should have ruled on the issue of existing marriages, and although I do not like it, the ruling should have been that it was up to the state of Utah under existing Federal law to decide if it wished to recognize the existing marriages or not.

This would then have resulted in Utah not recognizing the marriages, Windsor would not apply and in effect we would have the same outcome as if a stay had been issued immediately after the District court ruling, i.e, no SSM until the issue had final adjudication.

So once again the Supreme Court, by failing to do its job on SSM has emulated Laurel and Hardy, which Scalia and company now seem to do on a regular basis.

"Well, here's another nice mess you've gotten me into "

Joe said...

Why would the USSC add something about another issue? The lawsuit is not about the marriages after the ruling. The lawsuit concerns the marriage or marriages tied to the specific case.

The marriages -- like any such obtaining of rights by others by a district order before an appeals court stays the ruling -- would seem as JHW notes a question of Utah law.

It also might be subject to a separate federal question about retaining marriage rights ala the Ohio district ruling.

Michael C. Dorf said...

So many great comments. A few abbreviated replies on 5 points:

1) Paul: Thanks for the link! I've updated the post to include it.

2) Eric: Yes, the Court's ruling does not send a definitive signal on the merits. However, given that likelihood of success on the merits is part of the calculation, and other things being equal, the fact that the Court granted the stay means there's a greater chance of the Court finding no right to SSM than there would have been if the Court had denied the stay application.

3) KC Johnson: Thanks for the update on the numbers. That's a lot of weddings in a few weeks!

4) Keith Kaplan: State courts are obligated by the Constitution's Supremacy Clause to apply federal law. It's possible that the validity of one of the interim marriages could arise in litigation in state court that is not removable to federal court. Or a couple could choose to sue in state court.

5) A number of commenters: It simply isn't true that either the order or the petition EXPRESSLY states that a stay means unwinding the interim marriages. And, as I noted in the post, the logic of the petition's invoking the complexity of that unwinding cuts in the other direction. I agree that, absent an indication from the federal courts, the validity of those interim marriages is a question of state law. However, the federal courts have the equitable power to decide the question pendente lite. And one should not assume that a generic "stay" necessarily means restore the status quo ante rather than preserve the status quo.

I can illustrate with a hypothetical case. Suppose a state law forbids gender reassignment surgery. Now suppose that prospective M-to-F transsexual state citizen Joseph sues in federal court to have the law invalidated as a violation of substantive due process. He wins and the district court and appeals court refuse to stay the judgment pending appeal. Joseph has the surgery and becomes Josephine, as do a thousand other citizens of the state. Then the Supreme Court issues a stay pending appeal, but doesn't say whether the stay applies only prospectively or also applies retrospectively. It is nonetheless clear that the state cannot attempt to "rewind" the surgeries already performed by requiring that there now be F-to-M re-reassignment surgery. Obviously, there are differences between my hypo and the real case, but I propose the hypo simply to rebut the assumption of some of these comments that a stay that is silent on the question of its effect on interim acts necessarily permits the undoing of those interim acts.

Keith K said...

Perhaps I wasn't clear in my initial question. I wasn't sure how the supremecy clause was at play here.

Assuming (as you seem to agree) that the SCOTUS stay doesn't send a definitive signal on the merits in either direction, it would be unclear that Federal Law must be viewed as invalidating this Amendment, correct?

If that's the case - would the State Court judge, applying only State Law be able to ignore a State Constitutional Amendment and hold the marriages are valid?

Joe said...

I'm not sure if it answers or addresses Mr. Kaplan's question, but listening to the Huff Post segment, one of the participants flagged the possibility that invalidating a marriage that was obtained between the first ruling and the stay might be attacked specifically.

For instance, the right to remain married might be protected by the federal Constitution even if Utah can constitutionally bar new same sex marriages. If one of the 1360 couples go to state court to protect their marriage, a state judge might rely on that too.

A case out of Ohio involved the right to remain married (same sex couple got married in Maryland and Ohio did not want to recognize it) and is interesting avenue that other courts might rely on.

Keith K said...

The Ohio Court was deciding whether to recognize a marriage that was still valid elsewhere - and I asked Prof. Dorf about that kind of situation in his earlier post.

By way of example: if one of those people married in UT prior to the SCOTUS stay, moved to CA where SSM is legal, would they be considered married in CA.

Of course, that's a slightly different example.

There are plenty of cases in which States do not recognize valid marriages from elsewhere (e.g. certain consanguinity statutes).

In PA, they can, but don't have to invalidate such a marriage, while in KY, those same marriages are deemed void.

But since that is dealing with recognition of an otherwise valid marriage, I'd think it's a slightly different category.

Here it's a determination if the original marriage was ever valid.

Joe said...

It is not the exact same issue as the Ohio case, but the woman in the video suggested there was a separate right to remain married argument as applied to the 1360. This argument would not be available for couples who never got married at all in Utah. If the argument has any merit, a state judge can for the 1360 apply it even if the state amendment overall is constitutional.

Nick said...
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Nick said...

Suppose the State grants recognition tomorrow to those marriages of same-sex couples entered into between the District Court's Ruling and the stay granted by SCOTUS. I was wondering, and which I doubt the state will address, what recognition would be provided my marriage in DC. Realizing that both State (Amendment 3) and Federal Law (DOMA section 2) allow Utah to not recognize marriages performed in other states, I went to the Salt Lake County Clerk's office during the time marriage licenses were being issued to same-sex couples and was told that I could not obtain another license since I had already been married somewhere else. The only thing I was able to do was have my marriage in DC recorded by the country recorder’s office, which I subsequently did.
Can the State of Utah say in effect, we won't recognize your marriage in DC, and at the same time deny me a Utah Marriage license saying you've already been married?
Can you address whether due process and/or equal protection might give legal effect to my out of state marriage recorded during the time Utah issued same-sex marriage licenses?

Keith K said...

As per the Governor (reported through Buzzfeed: http://www.buzzfeed.com/chrisgeidner/utah-marriages-of-same-sex-couples-on-hold-pending-appeal-go), UT will not recognize the marriages - but won't revoke your drivers' license if you changed your name based on that marriage.

I assume that allows you to drive to the Court to file suit.

Joe said...

When I think "Bob Herbert," I think of the op-ed columnist myself.

The phrasing of the letter provided by Buzz Feed is interesting:

"Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide."

The marriages are put on "hold" for the purposes of Utah law. Not void as if they never existed. This might matter if a couple attempts to have the marriage recognized in some other state. This very well might lead to litigation.

The driver license example might sound trivial, but that is often a major means of id. It just goes to show the myriad of things that a marriage brings about.

David Ricardo said...

The Federal government has said that it will recognize the SS marriages entered into in Utah despite the fact that the state of Utah has said that it will not do so.

Mr. Dorf and others, does the Federal government have the legal authority to do so?

Keith K said...

I was wondering the same thing and asked Prof. Eric Segall on Twitter. This was his response:
"I think US can for fed. purposes only but there may be non-frivolous arguments from Windsor they can't.DOJ did right thing though"

I think that, to the extent that Windsor declared that the definition of marriage is a State issue, the Federal Government can't do an Anti-Windsor and define marriages that the State says doesn't exist.

That brings us back to the question of whether or not the Stay undoes the marriages or merely makes them unrecognizable under current UT law.

David Ricardo said...

@Keith and Mr. Dorf

Prof. Seagall’s statement reminds one of the old joke about an academic reply to a question, “Theoretically yes, but in theory, no”.

I too agree that theoretically DOJ is doing the right thing but I fail to see how in theory they are doing it legally.

David Ricardo said...

Follow up: Does this mean that the state of Utah can, will and/or should sue the Federal government to enjoin them from recognizing the marriages in Utah that the state itself does not recognize? And if so do they have standing to do so?

Keith K said...

TDPE, what damage does UT have here? They aren't being required to give any particular status to the marriages or offer any privileges, so I can't understand why they'd have standing.

As for whether the Feds can recognize them, here's how I would break it down:

What can the Fed. Gov't recognize when it comes to marriage?

As per Windsor, clearly State sanctioned marriages are recognizable. I think they may declare, in the near future, that States can't restrict certain marriages, but as of now- it gets tricky for marriages that aren't recognized by the State.

Let's say, by way of example, that CA says they want to recognize the marriages performed in UT during the period before the SCOTUS stay - I don't see any reason why they can't do that (absent a SCOTUS ruling that a home State needs to declare the marriage is still in good standing).

In that situation, the Fed. Gov't would be absolutely correct in recognizing those marriages as well.

The question really becomes, if no State recognizes you as married, can the Federal Government. I would think not.

If that were the case, States wouldn't be required to define marriage and Windsor becomes problematic.

David Ricardo said...


One interpretation of Windsor is that the Federal government is a passive player in the marriage recognition business. If a state recognizes a marriage, then Windsor says the Feds must also recognize that marriage.

So everyone would agree that if a SS couple married in Utah moved to California and California recognized that marriage the Feds would be obligated to do so as well. But the issue here is not SS couples that are married in Utah and move to California, the issue is about SS couples that stay in Utah and whose marriage is not recognized in Utah, and after the Supreme Court stay, legally so. How is it that the Federal government can choose to recognize those marriages? What is the legal basis for doing so when those marriages do not exist legally?

And if Utah and no one else has standing, what is to prevent the Feds from recognizing the Utah marriages even if it has no de jure right to do so? And carrying this further, suppose a SS couple is married in a sectarian manner but is not sanctioned by the state. Can the Feds recognize that marriage for Federal purposes, and if not who has standing to stop them from doing so?

So we agree that the Feds do not have the right to recognize SSM that is not recognized by a state, but apparently no one has standing to stop them from doing so? So is the conclusion that de facto it the Feds have the right to recognize non-state sanctioned SSM in Utah, it has the de facto but not the de jure right to recognize any form of SSM anywhere in the nation?

Or maybe not, we need help here Mr. Dorf.

Michael C. Dorf said...

Please see my two most recent posts.

Unknown said...
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Unknown said...

And if Utah and no one else has standing, what is to prevent the Feds from recognizing the Utah marriages even if it has no de jure right to do so? And carrying this further, suppose a SS couple is married in a sectarian manner but is not sanctioned by the state. Can the Feds recognize that marriage for Federal purposes, and if not who has standing to stop them from doing so?
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