Federal Recognition of Utah Interim SSM

By Mike Dorf

Here's a very very quick (and thus quite possibly wrong or even very wrong) analysis of the announcement by AG Holder today that the federal government would recognize the interim same-sex marriages that were performed in Utah during the time between the district court ruling and the SCOTUS stay.

Where does the executive branch of the federal government get the authority to recognize as "marriages", marriages that are not recognized by the state (except, bizarrely enough, for purposes of obtaining driver licenses with a new name)?  The video of AG Holder does not say, but I can only think of two answers.

1) One possibility might be that the executive branch--pursuant to a "departmentalist" view that enables it to have its own view about how to interpret the Constitution--thinks that state laws banning SSM are all unconstitutional on equal protection grounds.  I think that would be a defensible position, but it's pretty clearly NOT the position taken by the Obama Administration.  It's not recognizing marriages from other states that deny same-sex couples the right to marry.  E.g., if a same-sex couple held a marriage ceremony in Louisiana but the state refused to recognize them as married (as Louisiana would), then the Obama Administration would not treat the couple as married for federal purposes.

2) And so we come to what must be the reason for the Administration's decision: The Administration believes that Utah was wrong in construing the SCOTUS order as giving it the authority to rescind the already-performed marriages.  After all, the SCOTUS order could have meant only three things with respect to the interim marriages: a) They're invalid; b) Whether or not they're valid is purely a matter of state law; or c) They're valid.  If the SCOTUS order meant either a) or b), then the federal executive would have had to reject the interim marriages as invalid (unless operating on the theory I've described under 1, which it wasn't).  But that's not what the federal executive did, and so, the federal executive must take view c), that the SCOTUS order means the interim marriages remain valid pendente lite.

3) I think the fact that the Utah government and the federal government reached different conclusions about the validity of the interim marriages pendente lite underscores my view, expressed on the blog on Tuesday, that the SCOTUS order was (irresponsibly) ambiguous on the validity of those marriages.

UPDATE: I've added a few more possibilities in a follow-up post.

{Finally, apologies to Prof. Buchanan for stepping on his excellent post on the NJ traffic scandal.  If you haven't read it yet, I highly recommend it.}