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Saturday, June 27, 2015

More of what happens next (Updated)

A follow up to this post and more details:

1) According to this story, Roy Moore is being . . . Roy Moore. He said Obergefell was worse than Plessy; continued to insist that there is no such thing as same-sex marriage in the Constitution; and he "can't say" whether same-sex marriages will happen in the state. This story shows Moore going even further around the bend, now accompanied by his wife, a conservative activist: Moore insists the Court not only lacked authority to issue the ruling, but that Ginsburg and Kagan should have recused, calling into question the validity of the decision. There is a good chance that someone in Alabama is going to be held in contempt.

2) But the same story indicates that Alabama Governor Robert Bentley said he disagrees with the decision, but he would "uphold the law of the nation and this is now the law."

3) I want to say a bit more about the remarks by Mississippi Attorney General Jim Hood that "the Supreme Court's decision is not immediately effective in Mississippi until the Fifth Circuit lifts the stay" on a district court injunction. I said this was inartfully stated, but basically right. And it goes to the basic distinction at work here, between precedent and injunction (and the question of its scope).

The Supreme Court's mandate requires district courts in four states to issue injunctions against enforcement of the laws in four states by some defendants as to certain plaintiffs. None of them are in or about Mississippi. There is an injunction barring the Governor and A/G of Mississippi from enforcing that state's ban as to two couples; that injunction is presently stayed, meaning they are not obligated to comply with the injunction and to issue licenses to the two named couples until that stay is lifted. So Hood is correct as a matter of the law of injunction.

But Obergefell is precedent, binding on all courts, even those in Mississippi, that bans on same-sex marriage are unconstitutional. So any other couple in the state could have filed a new lawsuit against Hood seeking an injunction prohibiting continued enforcement of Mississippi's ban and compelling issuance of licenses; that court would have to issue the injunction, under the binding authority of a SCOTUS decision. The judge might be swayed by the continuing Fifth Circuit stay, but perhaps not; since the stay was in place pending Obergefell, the district court might feel free to issue a new injunction now that SCOTUS has spoken. So Hood is incorrect as a matter of the law of precedent.

The point is it is not as simple as saying Hood is wrong or issuing dangerous advice, as someone says in this article. Hood is right that the existing injunction does not take effect until the stay is lifted--but that only applies to two plaintiff-couples. He is wrong that SCOTUS precedent is not yet effective in the state, as a matter of influencing a court in a new case.

According to this story, Louisiana Governor (and GOP presidential candidate) Bobby Jindal essentially made the same argument as Hood--no mandate has issued for Louisiana to issue licenses, thus Louisiana officials are under no obligation to issue licenses to same-sex couples. And like Hood, he is right, unless and until a federal judge slaps an injunction on Jindal and others.

Posted by Howard Wasserman on June 27, 2015 at 11:03 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

That's absolutely right. And that's my point about how the law of precedent operates. And why Hood was right as to injunction but wrong as to precedent. The distinction is less important when the precedent comes from SCOTUS; it matters with lower-court, especially district court, precedent,

Posted by: Howard Wasser134man | Jun 27, 2015 12:03:05 PM

That's absolutely right. And that's my point about how the law of precedent operates. And why Hood was right as to injunction but wrong as to precedent. The distinction is less important when the precedent comes from SCOTUS; it matters with lower-court, especially district court, precedent,

Posted by: Howard Wasser134man | Jun 27, 2015 12:03:04 PM

Although Mississippi clerks who refuse to issue marriage licenses currently cannot be held in contempt, aren't they still subject to section 1983 suits, now in their individual as well as official capacity? And if sued in their individual capacity post Obergefell, won't they have some trouble establishing qualified immunity? Perhaps that explains why clerks in other states not yet subject to injunctions began issuing licenses yesterday.

Posted by: Michael Masinter | Jun 27, 2015 11:33:59 AM

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