On December 20, 2013, US District Judge Shelby ruled in Kitchen v. Herbert that Utah’s constitutional amendment and statutes banning the performance or recognition of same-sex marriages violated the 14th Amendment. He was ruling on cross-motions for summary judgment. Since the state’s motion did not ask him to grant a stay in case his ruling went against them, he didn’t stay his ruling, which culminated in an injunction barring enforcement of the same-sex marriage ban. Immediately upon announcement of his ruling, same-sex couples started showing up at county clerk offices seeking – and, in many counties, getting – marriage licenses, and since then over 1300 same-sex marriages have been performed in Utah.
The attorney general’s office contacted Judge Shelby after the opinion was issued asking for a stay, and was told that they had to file a motion to that effect and give the other side an opportunity to respond. The motion was filed, responded to, and denied by Judge Shelby on December 23. On December 24, a two-judge motion panel of the 10th Circuit also denied a stay, but ordered that review of the district court’s opinion be expedited. A briefing schedule requires all briefing to be concluded by the end of February, and an argument will probably take place shortly thereafter. If the 10th Circuit really wants to expedite things — and take some excessive heat off of a three-judge panel — they should consider hearing the case en banc (by the entire 10-judge bench) right off the mark, since anything a three-judge panel decides might draw a petition for rehearing en banc anyway.
The state didn’t file its application for a stay with the Supreme Court until December 31, by which time perhaps as many as a thousand same-sex marriages had been performed. That Court granted a stay of the district court’s injunction, pending a ruling by the 10th Circuit, on January 6. So, effective upon issuance of the Supreme Court’s order, new same-sex marriages cannot be contracted in Utah while the stay is in effect.
The Utah Attorney General, Sean Reyes, announced, after some study, that the question of the legal status of the same-sex marriages performed from December 20 to January 6 is unprecedented and uncertain. The Governor’s Office issued an advisory notice on January 8 to state agencies asserting that the marriages are “on hold” and will not be recognized by the state while the stay is in effect. Governor Herbert’s position is that while the stay is in effect, the constitutional amendment and laws declared unconstitutional by Judge Shelby remain in effect and binding on the state. Since those laws ban recognition of same-sex marriages, the governor says, the state of Utah may not recognize these marriages. He temporized, however, stating that actions taken by the married couples prior to the stay would not be reversed. At least, he gave an example of a change of name on a driver’s license. If this was obtained before the stay, the state would not contest it — for now. He did not clarify, however, the interesting question whether same-sex spouses of state employees who signed up for spousal benefits before the stay would remain entitled to those benefits. His announcement does clearly imply that any applications to the state for anything requiring a valid marriage that was not filed prior to January 6 won’t be honored by the state.
My question is this: The Supreme Court stayed the district court’s injunction, but that’s all it stayed. It could not stay the 14th Amendment. That remains in effect in Utah. And that applies to these 1300-plus marriages. The announcement from the Governor’s Office said that its non-recognition position “is not intended to comment on the legal status of those same-sex marriages — that is for the courts to decide.” And there are more courts that have jurisdiction to decide that question than just the 10th Circuit in the pending appeal. So, does the state’s refusal to recognize the same-sex marriages violate the 14th Amendment rights of those couples?
What if, for example, one spouse in a same-sex marriage performed in Utah on December 20 suddenly dies? The governor would say that the question whether their surviving spouse is recognized as such under Utah law must be in held in abeyance — until, apparently, the final resolution of Kitchen v. Herbert, which might not be until 2015 or even later. In a similar situation, however, a federal court in Ohio ordered the state to recognize a surviving spouse from an out-of-state same-sex marriage, even though Ohio has a constitutional amendment and statutes similar to those of Utah. The district court in Ohio identified a constitutional “right to remain married” that outweighed whatever interest the state was asserting in refusing to recognize the marriage. And the court pointed to such realities as restrictions on burials in family plots and access to death benefits that would pose substantial harm to a surviving spouse whose marriage is not recognized. Utah recognizes other out-of-state marriages for such purposes. What valid policy reason would it have for refusing to recognize these marriages that took place pursuant to valid Utah marriage licenses? Do these 1300-plus Utah couples now have a constitutional “right to remain married” and would a state or federal court enforce that right by ordering the state to recognize a surviving spouse?
One can spin out numerous such hypotheticals. The longer the stay is in effect, the longer the normal vicissitudes of life will present situations where these couples whose marriages are considered by the state to be “on hold” will need to have decisions made. Litigation seems likely.
An emerging trend in the lower federal courts is to construe U.S. v. Windsor broadly as supporting the constitutional arguments of marriage equality advocates. (Justice Scalia construed it that way in his dissent, as Judge Shelby was quick to point out.) While the Utah case is pending before the 10th Circuit, we can expect to get more district court summary judgment rulings in the numerous pending marriage equality cases. Motions for summary judgment are already on file or soon to be filed in cases pending in other federal districts, as well as in many state courts. Virginia, West Virginia, North Carolina, Texas, Arkansas, Pennsylvania. . . The list goes on. More district court opinions are going to be issued in the months ahead, and the 9th Circuit may be ruling during 2014 on the appeal now pending from an adverse marriage equality ruling by the district court in Nevada, a ruling that predates Windsor and whose reliance on Baker v. Nelson as authority for rejecting the constitutional challenge appears risible in light of Windsor. Marriage equality plaintiffs may lose some of these motions, but it is likely that they will win some, and public opinion will advance as more opinions issue. These cases are pending in states where the local and state officials are inclined to defend their same-sex marriage bans, and by now they may be waking up to the need to ask for stays when litigating summary judgment motions, so we may not have a repeat of what happened in Utah (and, last year, in New Jersey) in terms of a district court order actually going into effect while an appeal is pending. Surely one thing the Supreme Court’s Order has done is to signal lower courts that marriage equality rulings are to be stayed pending appeal.
If marriage equality advocates win a circuit court of appeals ruling or a state supreme court ruling premised on the federal constitution, the Supreme Court would pretty definitely grant review, although it could abstain if it wanted to do so. But I would predict that the Supreme Court would be deluged by amicus briefs from state attorneys general and governors urging it to grant review, and perhaps the Solicitor General would join in, since the S.G. ended up coming in on the side of the marriage equality advocates in the California Proposition 8 case when it got to the Supreme Court and could logically argue that it would be in the interest of the nation to have a definitive ruling on marriage equality.
Most lower courts and legal scholars now seem to feel that the Windsor case lays a firm groundwork for the Supreme Court to rule for marriage equality, although there is some dissent from that view, mainly focused on the federalism comments in Justice Kennedy’s opinion and the particular wording of the operative portion of the opinion. Justice Kennedy spoke in terms of the right of married couples to “equal dignity” from the federal government, but he referred to a dignity “conferred upon” those couples by the states that allow them to marry, and I’ve heard the argument that this signals a right of states to decide who can marry. I don’t think that the grant of a stay need affect the analysis of the ultimate question on the merits, although some might construe it as signaling disagreement by a majority of the Court with Judge Shelby’s decision. I think that would be an unduly pessimistic reading. Issuing a stay in a case like this seems like the natural thing to do. The 9th Circuit did it in the Prop 8 case, and the 2nd and 1st Circuits did it in the DOMA cases. I speculate that the Supreme Court majority (perhaps even all of them) was sympathetic to the state’s argument that implementation of a major social change should not take place on the basis of a single-judge district court decision awaiting review on a question that the Supreme Court has not yet decided, and this would justify a stay, at least until the 10th Circuit rules, regardless of whether the Supreme Court was likely to reverse upon further appeal.
As to how the Supreme Court would ultimately rule, I remain unsure. I had found Justice Scalia’s dissent persuasive on this point, if a bit overblown in his usual dissenting style, but I’ve heard at least moderately persuasive arguments to the contrary: that although Justice Kennedy disavowed deciding the case on federalism grounds, his analysis incorporates a heavy dose of federalism in any event, and there is plenty of language in his opinion to quote in support of the idea that defining marriage is a state prerogative in the first instance. But he was also careful to note that states must act within constitutional bounds, as the Supreme Court has ruled several times in striking down state marriage restrictions. So I remain uncertain how Kitchen v. Herbert may ultimately be decided by the Court, under the likely name of Herbert v. Kitchen.
As to what may happen in the 10th Circuit, I was cheered to read a comment in the Salt Lake Tribune that Prof. Lynn Wardle of Brigham Young University Law School, an ardent opponent of same-sex marriage whose name appears on briefs in this case, seems resigned to losing in the 10th Circuit. The circuit is “evenly balanced” at present in terms of the political affiliations of the presidents who appointed the judges — 5 by Democrats and 5 by Republicans – but that doesn’t necessarily tell us how this will come out on the merits. (A tie vote, by the way, would affirm the district court by default.) The two-judge panel that denied the stay had one Republican appointee and one Democratic appointee. The 2nd and 1st Circuit DOMA panels did not fall along political lines, either. The district judge in Massachusetts who ruled against DOMA was a Republican appointee, as was the Circuit judge who wrote the opinion affirming him, as was Justice Kennedy who wrote for the Court in Windsor. So we just have to wait and see on the merits.
But for now, I think it would be interesting to see what a Utah or federal court might say about the refusal of the state to recognize lawfully-contracted same-sex marriages while the stay is in effect, and I would anticipate that some lawsuits may be filed relatively quickly.