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Friday, January 08, 2016

No one gets it

I am repeating myself, so I apologize. But this story on Chief Justice Moore's order to Alabama probate judges includes opinions from both sides of the issue--two law professors and the two United States Attorneys in Alabama criticizing the order and anti-marriage-equality advocates praising it to the heavens (in one case quite literally). None of them is right in their analysis.

And the common theme in all of this incorrectness is an overly simplistic approach to the process of constitutional litigation, particularly everyone's disregard for the role of lower courts and judgments. The Supreme Court, in the course of deciding one case, makes broad pronouncements about the law (e.g., the Fourteenth Amendment prohibits bans on same-sex marriage). But those pronouncements are not self-enforcing and do not, in and of themselevs, impose legally binding obligations on any non-parties or as to other laws. As to people and laws not party to the case that created that precedent, an additional step is necessary--separate litigation applying that precedent and producing a judgment as to this new law and these new parties. But we have that in Alabama--Judge Granade's class injunction (entered in May, stayed until the ruling in Obergefell, made effective by order applying Obergefell, and summarily affirmed by the Eleventh Circuit) requiring every probate judge in the state to issue marriage licenses to any same-sex couple that wants one. Thus, the problem with Moore's order is that he is compelling probate judges to act in contempt of court.

The USAs insist that the "issue has been decided by the highest court in the land and Alabama must follow that law." Carl Tobias (Richmond) says Obergefell "was a national ruling and it applies nationally." While correct in the abstract, it makes it all sound automatic when it is not--the Court's opinion applies nationally, but the judgment of the Court does not. One of two things must happen: Either the extra step of a judgment against Alabama officials as to Alabama's law, based on Obergefell, is necessary, or Alabama officials must voluntarily comply with Obergefell in order to avoid the inevitable judgment. The point of Moore's order is to force Alabama officials to follow the first rather than second path. That my be unwise, obnoxious, and driven by Moore's pathological intransigence. There is nothing unlawful about it.

But the anti-SSM advocates are equally wrong because they ignore the judgment and injunction against the class. So one advocate can say that Alabama does not have to follow a Supreme Court decision that ruled on law in another state. Which is true, but irrelevant, because of the injunction. Unfortunately, they can argue that way only because Moore's critics (and most, but not all, reporters) talk about this as defying the Supreme Court in Obergefell rather than defying the injunction that applied Obergefell to Alabama law.

And the attorney for one of the probate judges insists that the Eleventh Circuit has not applied Obergefell as to Alabama law. This is wrong in several respects. First, the Eleventh Circuit affirmed the  injunction.although the reasoning is convoluted and incorrect in some respects, including its understanding of how Obergefell affected Alabama. Second, regardless of what the Eleventh Circuit did or did not do, the class injunction is out there--it was was entered, took effect, has not been reversed by a higher court, and has not been stayed. This means probate judges are under an ongoing judicial obligation, imposed on them directly and on pain of contempt, to issue licenses. So Moore's order does not merely tell probate judges to wait--it is telling them to act in contempt of a federal judgment. Third, neither federal circuit nor district precedent is binding on state courts, thus, even if the Eleventh Circuit had not spoken, it would not matter because the Eleventh Circuit does not create a greater obligation on Alabama officials than a district court.

So if we are going to discuss this accurately, everyone needs to shift the focus to the district court and to Judge Granade's extant injunction. And with that focus, we see that Moore's order, if followed, sets probate judges (although not Moore himself) up for a potential Kim-Davis-like showdown.

Posted by Howard Wasserman on January 8, 2016 at 07:16 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


JHW: You are correct that I am taking this form of departmentalism as a given and normatively accurate. And I may be expecting too much from popular press accounts and snippets of quotations that no doubt are being taken out of context. At the same time, just as I am assuming departmentalism, the news reports are assuming judicial supremacy. So at best the discussion is being over-simplified. But, again, that may be all we can expect.

It is interesting that you place less weight on court-of-appeals precedent than I would. I would say that court of appeals precedent would be binding on state officials in that subsequent litigation. That is, if the Eleventh Circuit had declared Florida's SSM ban invalid, that decision would be binding in litigation challenging Alabama's ban and would be enough to give the plaintiffs a quick injunction and attorneys' fees (damages is a bit cloudier in light of recent precedent).


The facial v. as-applied debate is best understood as a matter of precedent, not judgment (if we accept that distinction within departmentalism). That is, a judgment declaring a law facially invalid is still binding only on and as to the parties; it does not alter the basic rule that judgments bind only parties. A declaration of facial validity simply makes the subsequent litigation easier, because the declaration of invalidity is binding on the lower courts and does not leave room for distinctions or other work-arounds.

It's only wasteful if public officials choose to make it wasteful by insisting that the game fully play out, rather than simply complying with SCOTUS precedent. And there are all sorts of incentives (especially attorney's fees and dsmages) pushing officials towards voluntary compliance. And most officials will take that path.

Posted by: Howard Wasserman | Jan 8, 2016 7:15:30 PM

Maybe you're right, Howard -- if only the most technical, pedantic sense.

But I wonder:

(a) if this isn't a strange way to back into a "facial" vs. "as applied" debate that, perhaps, you don't want to back into,


(b) if there isn't an easier way to guarantee full employment for lawyers. This could work, sure, since it'd require all sorts of additional litigation to "bind" folks who aren't, in your view, otherwise "bound." But wouldn't it be pretty darn wasteful all the same?

Posted by: Goober | Jan 8, 2016 4:53:31 PM

JHW again expresses things well. But, then "no one gets it," right? So, that would include the writer of the OP. This is not meant to be anonymous snark. Maybe.

Posted by: Joe | Jan 8, 2016 9:52:07 AM

There are several senses of "binding" here, which don't map perfectly onto each other.

1. "Binding" so as to potentially give rise to contempt sanctions. Here, the only "binding" ruling in this sense is the district court injunction, as you correctly explain.

2. "Binding" in the sense of being governing law for any litigation arising from the conduct at issue. Obergefell is "binding" in this sense. Any probate judge who denied a marriage license to a same-sex couple could be sued, would lose under Obergefell, and would not get qualified immunity to any claim for damages.

3. "Binding" in the sense of giving rise to a legal obligation of obedience.

Essentially in this series of posts you are equating 1. with 3. (at least in the context of constitutional litigation, where there can be good-faith disagreement about what something like the Fourteenth Amendment actually means for same-sex marriage). This isn't clearly wrong. But it isn't clearly right either. Exactly to what extent case law comes into play in determining the content of the legal obligations facing public officials is a difficult and disputed question. Just by way of illustration, someone might take either of the following views:

- Public officials are bound to obey any court decision that constitutes governing law for their conduct, i.e., 2. and 3. correspond to each other. (After all, they might say, we have good institutional reasons to invest judges rather than executive officials with primary authority over legal interpretation.)

- Public officials are not bound to obey just any governing court decision; an appeals court ruling doesn't have enough definitiveness to give rise to an obligation of obedience. But when the Supreme Court, specifically, resolves a legal question, that is binding.

There is plenty of actual confusion and inaccuracy about these issues (especially with respect to the earlier incarnation of them, about the force of district court rulings that were not binding as precedent). But some of what you characterize as "wrong" here is just disagreement with your strong departmentalism.

Posted by: JHW | Jan 8, 2016 8:52:14 AM

That first sentence should be "as he (in his authority as a state officer who has sworn an oath) interprets it"

Again, "the Constitution" does not mean what the Court says it does except within litigation.

Posted by: Howard Wasserman | Jan 8, 2016 8:51:26 AM

But is he violating the Constitution, as he (in his authority as a state officer who has sworn an oath)? In the abstract, I'm not sure. I also don't necessarily believe "binding precedent" means anything outside of the judiciary, which means I don't believe it's inherently a bad thing. If we buy any form of departmentalism, then Moore has the power to interpret the Constitution for himself and act on that interpretation, subject to being overruled by 1) a superior state official or 2) a court through a judgment in a case in which he is a party.

You're right that Obergefell clearly establishes the right, which takes effect should Moore or any probate judge be sued for damages. But Q/I is really functioning there as an incentive to follow precedent and skip the step of additional litigation.

Q/I is also potentially problematic for the deparmentalist position, although that is a broader issue for another day.

Posted by: Howard Wasserman | Jan 8, 2016 8:50:05 AM

Yeah... Obergefell may not directly bind anyone who wasn't a party to the case, but the United States Constitution definitely does. Why is it incorrect to say that Alabama must follow the law (i.e., behave constitutionally)? Why is it not "unlawful" to intentionally engage in a course of actions that you know will cause (albeit temporary) deprivations of constitutional rights?

Posted by: Griff | Jan 8, 2016 8:49:58 AM

I think this is an overreading of what a lot of folks say. It isn't solely whether Moore is violating a court order, but whether he is violating the Constitution. Think about it in the qualified immunity context. While Obergefell isn't a binding court order on Alabama, it certainly clearly establishes that the denial of marriage licenses to same sex couples on those grounds is unconstitutional. The fact that the specific judge has not been compelled not to act unconstitutionally would not be a defense.

More broadly, blatantly refusing to follow binding precedent is itself a bad thing.

Posted by: Adam | Jan 8, 2016 8:34:14 AM

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