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Monday, January 06, 2014

Stay in Utah SSM case

SCOTUS without comment stayed the permanent injunction against Utah's ban on same-sex marriage, pending disposition in the Tenth Circuit. So we are back to no marriage equality in Utah, at least for a few more weeks (the Tenth Circuit agreed to expedite the appeal). Probably the correct result, although Mike Dorf makes a good argument the other way. In particular, the lay of the land has changed since I first wrote about the case--hundreds or thousands of same-sex couples have gotten marriage licenses since around Christmas, when the district court and court of appeals denied the stay, and this morning. So the thing a stay is designed to prevent--chaos in the status quo that may be difficult to undo--already has happened to some extent.

Posted by Howard Wasserman on January 6, 2014 at 11:23 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Do you think this grant of a stay can be distinguished from the denial of a stay in the Texas abortion case? In the Texas case, Justice Scalia touted a high standard for second-guessing the court of appeals on the question of a stay, while the dissenters emphasized preservation of the status quo.

Posted by: Jennifer Hendricks | Jan 6, 2014 2:49:59 PM

On the whole, think they're distinguishable in that, utlimately, this case was right and the Texas case was wrong, the difference being the level of chaos and irreparable harm. Looking just at SCOTUS, I think Texas was a clear hint and the Court's views of the merits there and in the court of appeals, while this was just about the Court wanting to buy itself and the court of appeals more time (even if the smart money is on the Tenth Circuit affirming).

Posted by: Howard Wasserman | Jan 6, 2014 4:35:39 PM

I'm curious on what basis people (the smart money) believe the Tenth Circuit will affirm. The fundamental rights line of reasoning? Heightened scrutiny based on sex classifications? Or an animus theory (eschewed by the district court)? It seems difficult to confidently predict affirmance without consensus on which is the most viable theory.

Posted by: Susannah Pollvogt | Jan 7, 2014 10:08:26 AM

The judgment in the abortion case commanded negative action , i.e., telling the state NOT to something. The judgment in this case commanded positive action.

Posted by: Michael Ejercito | Jan 7, 2014 10:44:08 AM

Michael: Not necessarily. Both cases can be characterized as negative injunctions--stop enforcing a particular provision of state law. While positive action would result--marriage licenses will be issued--that is a result of the state being unable to enforce that provision. This is different than an injunction that says, e.g., "build more prisons."

Susannah: Any of those is a viable theory and the court can rely on any one (including one explicitly eschewed by the district court) to affirm.

Posted by: Howard Wasserman | Jan 7, 2014 10:50:26 AM

Sorry, I was not clear. I know that an appellate court can affirm on any basis supported by the record, but there seem to be real political and doctrinal costs associated with the different theories of invalidating a state ban on same-sex marriage. E.g., recognizing that such laws implicate the fundamental right to marriage involves much more exposure in terms of future litigation than does applying intermediate scrutiny because such laws rely on facial sex classifications. And both of these are more conservative paths than recognizing sexual orientation as a suspect or quasi-suspect classification.

Posted by: Susannah Pollvogt | Jan 7, 2014 4:36:30 PM

Fair enough. My point was that it doesn't matter. The prevailing winds are such that, whatever rationale, it is highly the Tenth Circuit will affirm.

Posted by: Howard Wasserman | Jan 7, 2014 4:48:24 PM

To me it matters from the perspective of signalling how equal protection law will develop in the future, and which types of arguments will be available to advocates. Will the courts continue to decline to recognize new suspect classes; will fundamental rights analysis become more prominent; does the doctrine of unconstitutional animus have legs; etc.

Posted by: Susannah Pollvogt | Jan 7, 2014 5:12:15 PM

I think we're talking past one another a bit. Obviously the ultimate basis on which the right to SSM is established matters for purposes of constitutional law. It doesn't matter for the purposes on which I was writing--simply predicting that the Tenth Circuit would affirm.

Posted by: Howard Wasserman | Jan 7, 2014 5:17:02 PM

While sex classifications that disadvantage on sex in relation to the other are held to intermediate scrutiny, the supreme Court never held that this intermediate scrutiny applied when both sexes are equivalently burdened. Some appellate courts, like the Third Circuit, had concluded that separate but equal with respect to sex does not violate equal protection. See Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3rd Cir. 1976), aff'd by an equally divided Supreme Court, 430 U.S. 703, 97 S.Ct. 1671, 51 L.Ed.2d 750 (1977) United States v. Virginia, 518 U.S. 515 (1996) was not to the contrary, as it relied on the lack of a substantially equivalent institution for women. See Virginia, 518 U.S. at 547 (noting the unequal opportunity in female-only alternate program offered by the state), Virginia, 518 U.S. 562-563 (Rehnquist, J., concurring) (noting that availability of a truly separate but equal institution would have obviated the constitutional challenge)

Posted by: Michael Ejercito | Jan 7, 2014 9:24:11 PM

@Michael - You raise an interesting point. I don't see any principled basis for treating sex classifications differently than race classifications in this respect, but that doesn't mean the Court wouldn't go there.

@Howard - I think we might have different views on judicial behavior. To me there is no predicting affirmance without also identifying a palatable basis for doing so. I am genuinely curious why people are so confident that the Tenth Circuit will affirm. But I don't mean to beat a dead horse.

Posted by: Susannah Pollvogt | Jan 8, 2014 10:24:03 AM


I should note that separate but equal was only struck down in the context of racial segregation in public schools. In all other contexts, Plessy v. Ferguson is still good law.

Posted by: Michael Ejercito | Jan 10, 2014 11:11:00 PM

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