By Michael Dorf
Although elected officials in some states that fall within the circuits that have invalidated same-sex marriage (SSM) bans have acquiesced to the inevitable by implementing SSM in their states, others appear to want to go down swinging. I have no sympathy for the substance of their (lost) cause, but here I want to suggest that their legal position has more to recommend it procedurally than one might at first think. I'll focus on South Carolina, where there is a potential conflict brewing between the state and federal courts. As I'll explain, the South Carolina Supreme Court may be playing a subtle game.
But first, a seemingly unrelated story. In 2007, I received a phone call from a NY Times reporter who was interested in a case from New Rochelle. A state court judge had thrown out the charges against a homeless man who was arrested for begging in violation of a state law that had been declared unconstitutional over a decade earlier, yet the state planned to appeal. Wasn't it obvious, the reporter asked, that the state cannot enforce an unconstitutional law? The answer, I told her, was no.
The earlier case involved different parties (New York City rather than New Rochelle, and a class of NYC plaintiffs that did not include the New Rochelle man). Thus, the earlier case did not bind the New Rochelle court as a matter of preclusion (which is party-specific). And the prior case was a ruling by the U.S. Court of Appeals for the Second Circuit, but state courts are not bound as a matter of precedent by rulings of federal trial or appeals courts, even if the state is in the same circuit as the appeals court.
The conversation with the reporter led me to write a NY Times op-ed, which in turn led to a successful multi-year collaboration with the lawyer who was representing the man, as I described here. The important point for now is the one that surprised the Times reporter: decisions of the lower federal courts do not bind state courts, even if they hold a law unconstitutional.
Accordingly, the South Carolina Supreme Court (SCSC) was correct in its ruling on Thursday that the Fourth Circuit decision in Bostic v. Schaefer--which invalidated the Virginia SSM ban--did not bind it. To be sure, the SCSC's citation of Baker v. Nelson (the 1972 SCOTUS per curiam dismissing jurisdiction for want of a substantial federal question in A Minnesota case) displayed at least a bit of churlishness. Public opinion has been rapidly moving in favor of SSM everywhere, but South Carolina is one of the states on the trailing edge of that trend. Thus, it's quite possible that in the absence of the federal court rulings, the South Carolina Supreme Court would still oppose a constitutional right to SSM.
Nonetheless, I don't read last week's SCSC order as hostile to SSM. It merely instructs state probate judges (who have responsibility for issuing marriages in the state) to hold off on granting marriage licenses to same-sex couples pending the final resolution of pending federal district court litigation. That could come quickly, with an equally quick affirmance by the 4th Circuit. To be sure, at that point the SC Attorney General could try run the clock by waiting the full 90 days to file a cert petition with the Supreme Court, but in the meantime, the appeals court would likely instruct the district court to enter orders facilitating marriages immediately--as the Ninth Circuit did last week. That in turn could lead the SC AG to seek an emergency stay from the Circuit Justice--CJ Roberts for the 4th. We might expect the Chief Justice to issue a temporary stay pending consideration by the full Court, as Justice Kennedy did with respect to Idaho's stay application on Wednesday. But if so, there's every reason to think that the full Court would then reject the application, as it did with the Idaho application after a couple of days.
It's tempting to ask why the SCSC even bothered to delay SSMs in South Carolina for the days or weeks it might take for the federal court litigation to conclude. After all, SC officials, including Justices of the Supreme Court, could have simply acquiesced and ordered SSMs to commence immediately following the cert denial in the 4th Circuit case. But viewed from the other direction, the SCSC decision does acquiesce to a considerable degree.
Consider that the pending federal district court litigation challenging South Carolina's SSM ban is not a class action. The complaint in the case was filed on behalf of one couple who were married in DC and seek recognition of their SSM in SC. (The foregoing link is to the original complaint. I have looked at the amended complaint, which is not available free online, so far as I could tell, but it doesn't change the parties.) Thus, as a formal matter, the pending litigation will only resolve whether South Carolina must honor the marriage of this one particular same-sex couple. Even after the district court says that it must, and even after the 4th Circuit affirms that answer, and even after the SCOTUS denies cert, the South Carolina courts will still be free to treat every other same-sex couple in South Carolina as not married, without violating either principles of preclusion (because those other couples were not parties to the original lawsuit and there is no non-mutual issue preclusion against the government), or precedent (because a cert denial is not a ruling on the merits, so the only rulings on the merits will be by lower federal courts, which do not bind state courts as precedents).
In its brief opinion on Thursday, the SCSC appeared to recognize all of this, stating that "although the parties in this matter and the federal case are not identical, the principle underlying [one] of the South Carolina Rules of Civil Procedure that duplicative litigation should be avoided applies to this case." By treating federal court litigation involving different parties as "duplicative," the SCSC appeared to indicate that once the lower federal courts hold the state's SSM ban invalid, the SCSC will treat that as binding in all cases--even though, as a technical legal matter, the SCSC and state officials could hold out until each South Carolina same-sex couple seeking to marry or seeking recognition for an out-of-state SSM brings their own successful lawsuit, or a statewide class action is certified and declared victorious.
Although some South Carolina politicians (e.g., this one) echo the "impeach Earl Warren" billboards that characterized the Southern campaign of "massive resistance" to Brown v. Board, the SCSC has staked out a decidedly moderate course. By waiting for a federal district court ruling, the SCSC (whose Justices are appointed by the state legislature to renewable 10-year terms) gives the appearance of resistance to SSM, but by preparing to acquiesce before the rules of precedent and preclusion would technically require acquiescence, the SCSC in fact shows that its resistance is a mere token.