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Wednesday, December 25, 2013

More on stays and injunctions, marriage equality edition

Last month, I wrote about when courts will or should stay negative injunctions ("this law is unconstitutional, stop enforcing it") pending appeal, pointing to marriage equality as a case in which a stay ordingarily would be appropriate. Well, perhaps not. Following last week's district court decision invalidating Utah's ban on same-sex marriage, both the district court and the Tenth Circuit declined, without explanation, to stay the injunction pending appeal. This means that, once state offices open after Christmas, same-sex couples will be able to get married in Utah.

Mike Dorf has a nice a take on this decision--he calls it legally and morally correct, but still wrong. Dorf makes the same argument I did about chaos and confusion (and, he adds, heartbreak) if marriages recognized in the interregnum are then declared invalid if the district court is reversed on the merits on appeal. In Dorf's view, this case came down to the likelihood of success on the merits prong--just as the Texas abortion case did last month--which here cut against issuing the stay. In light of Windsor, the state is not likely to prevail on the merits on appeal to the Tenth Circuit or SCOTUS; bans on same-sex marriage simply cannot stand. That overcomes any concerns for (or real risk of) chaos and heartbreak. Nevertheless, Dorf argues that decision not to stay still is wrong, just because one never knows what SCOTUS will do or when. I agree, which is why I would argue that risk-of-chaos should play a larger role than likelihood of success in cases such as this.

The next move could make for a fun Christmas. Step one is a petition to the Tenth Circuit Justice, Justice Sotomayor; she can either decide on the stay herself or refer the matter to the full Court. If she denies the stay, the state could file a renewed application with any Justice of their choosing.  Since it is Christmas, Justice Kagan may be the easiest one to find.

Merry Christmas to all who celebrate.

Update 12/27: Andrew Koppelman adds this tidbit: The Utah AG did not request a stay as alternative relief in its original pleading, which has been common practice in marriage equality cases. (Koppelman's post links to a transcript of the stay hearing in the district court, where the court says he did not enter a stay because no one requested one and the AG seems confused that the court did not enter a stay sua sponte). This explains the procedural rush over the stay, although I doubt it ultimately would have made a difference.

Posted by Howard Wasserman on December 25, 2013 at 08:11 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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It seems like you are using a very expansive and inchoate definition of harm that incorporates such abstract considerations such as "chaos" and "emotional heartbreak" that would be present in any equal protection constitutional challenge to a statute that involves expanding access to a previously excluded class. I would think that a court must weigh contingent, intangible harms (chaos & emotional heartbreak) against present, quantifiable harms (immediate federal & state benefits, intestacy laws, presumed guardianship, immigration rights, etc.) When framed as such, it seems the denial of the stay was inevitable. Additionally, it seems almost cynically paternalistic for the State to claim that the Plaintiffs would suffer harm that it in fact is presently causing. Shouldn't the courts defer to the Plaintiff's evaluation of any potential harm asserted on its behalf, especially in the context of equal protection claims where the State's motives are already suspect? Also, even if the plaintiffs lose, there is still the possibility that that appellate courts could craft a decision that grandfathered any interim marriages without having to punt it back to the state courts.
Finally, I think what distinguishes this case from Perry is not the question of harm but the likelihood of success. Prior to the USSC decisions in Windsor (and to a lesser extent Perry), it was unclear whether the Court was going to extend Lawrence to its logical conclusion (which seemed to be the purpose of Scalia's hectoring the majority in a Cassandra like fashion in his dissent) so there was legitimate doubt about existing precedence. There is much less doubt after Windsor/Perry, which in many ways was more of a prudential deferral to allow more time for public opinion and states laws to evolve so as to allow Kennedy to finally put the matter to rest in a few more years when a decision like the one in Utah finally percolates back up to the USSC.

Posted by: etseq | Dec 25, 2013 6:05:01 PM

Would the marriages necessarily be void if the case is overturned on appeal?

Posted by: Brad | Dec 25, 2013 9:52:16 PM

Given the breadth of the Utah provision, there is a greater chance of them being void than in some other cases. Probably hard to know if it is "necessary" though. I find the "necessary" nature of laws generally is a bit variable.

Posted by: Joe | Dec 26, 2013 3:12:14 PM

The breadth of the amendment at issue makes it unlikely that it would survive heightened scrutiny, and Windsor suggests that heightened scrutiny may be required for laws that have a far-reaching purpose and a direct impact on over a thousand benefits, even if sexual orientation were not a suspect classification. (DOMA would have been upheld if rational basis was the governing standard.)

another question is against whom is the judgment? A quick glance of the Utah state constitution shows that the state auditor and state treasurer do not work for the governor, and so they would not be bound by the judgment, but by the state constitution. What of numerous local elected officials who do not work for the defendants nor have fiduciary obligations towards them (which would be essential in establishing the existence of an agency relationship under current Supreme Court precedent)?

Posted by: Michael Ejercito | Dec 28, 2013 9:53:13 PM

Here is a brief update.

http://legaltimes.typepad.com/files/13a687-herber-v-kitchen-order.pdf

It is important that the district court judgment required the state act in favor of the plaintiffs. If a state had a law that criminalized the purpoted solemnization of a same-sex marriage, and a district court struck the law down and enjoined the enforcement, the injunction would be a prohibition against the state acting against the plaintiffs, and the Supreme court would not be likely to stay such an injunction.

Posted by: Michael Ejercito | Jan 6, 2014 11:15:19 AM

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