Same-sex marriage and universal injunctions

A further thought on universal injunctions: Sam's first post unpacks the question of when universal injunctions started, both for the historical pedigree (whether non-party relief has some basis in historic equity or common law) and for when the issue burst on the modern scene.

I cannot prove causation. But I want to make a pitch for the same-sex marriage litigation from 2012-15 as a turning point. Although those cases involved challenges to state law, this was a nationwide litigation campaign of challenges in multiple states. And it exposed the atomized nature of constitutional litigation.

An injunction enjoining enforcement of one state's SSM ban guaranteed marriage licenses to the three or four couples who brought the suit but did nothing for non-party couples. Many states agreed to grant licenses to non-parties, voluntarily complying with judicial precedent giving the injunction universal effect if not force. Alternatively, new couples sought to join cases as plaintiffs and to expand the existing injunction to protect them and guarantee them licenses. Either required steps beyond the original injunction.*

[*] Either move suggested chaos had SCOTUS resolved marriage equality the other way--states undoing valid-at-the-time marriages or states having a small class of married same-sex couples while able to deny licenses to such couples going forward.

The marriage-equality campaign also introduced zombie laws into the mix. The Eighth Circuit affirming the invalidity of Oklahoma's SSM ban did nothing to stop Kansas officials from enforcing that state's ban as to anyone--the decision zombified Kansas' law but did not produce (yet) a judgment prohibiting Kansas officials from enforcing its ban. Binding precedent dictated the result of that litigation--a district court in Kansas would declare that law invalid. But its injunction guaranteed licenses only to the named couples and not beyond. The cycle repeats--other couples must undertake new-or-expanded litigation or states must voluntarily comply with new precedent.

All of this raised the  complaints of inequality and unfairness that universalists fear and that drive current calls for universality in some contexts--officials must grant licenses to the plaintiff couples but could deny them to other couples without violating the court order; Kansas officials could continue to deny licenses despite binding court of appeals precedent (based on Oklahoma's law).