Can a Federal Court Provide "Grandfather" Status to Utah Same-Sex Marriages If the District Court Ruling Is Later Reversed on Appeal?
By Mike Dorf In my blog posts on Tuesday and Thursday of last week, I explained that I thought a stay of the SSM judgment in the Utah case might be warranted because a federal court lacks the authority to provide "grandfather" protection for the couples who married while the district court ruling was in effect, in the event that the merits ruling was eventually reversed. That statement was partly based on the concurring opinion of Justice Stevens in Edgar v. MITE . There, in the context of addressing whether a case was moot, Justice Stevens said that even if a federal district judge issues a preliminary or final judgment declaring that the plaintiff has a constitutional right to act in violation of a state law, if the plaintiff does just that, but the judgment is later reversed on appeal, the plaintiff may be prosecuted for the conduct--even though the conduct had been declared lawful at the time it occurred. It might be helpful, Justice Stevens said, for federal courts