This morning, the U.S. Supreme Court issued the following order:
MONDAY, JANUARY 6, 2014
ORDER IN PENDING CASE
13A687 HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.
The application for stay presented to Justice Sotomayor and
by her referred to the Court is granted. The permanent
injunction issued by the United States District Court for the
District of Utah, case No. 2:13-cv-217, on December 20, 2013, is
stayed pending final disposition of the appeal by the United
States Court of Appeals for the Tenth Circuit.
This says everything but leaves many questions. First, Justice Sotomayor referred the application for the stay to the full Court, as most observers expected her to do, and that decision on her part really needs no explanation. Second, the Court granted the application, to the extent of holding that the federal district court’s injunction is stayed until “final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.” The Court, as is normal practice, did not give any explanation as to how this application met the criteria it has used in the past to determine whether a trial court ruling in a constitutional case should be stayed by the Supreme Court when both the trial court and the court of appeals have denied the same application. When the Supreme Court is not unanimous on one of these stay applications, there is occasionally a dissenting opinion by one or more of the Justices, which can shed some light on the discussion, if any, between the justices, but there is no indication of that.
So one can at best speculate as to why this action was taken. In my previous discussion after the opposing memo was filed by the plaintiffs, I suggested that if the Court decides this based on the legal criteria it had used in the past, the stay would be denied, but if they decided it based on realpolitik, the stay would be granted. Is anybody surprised which governed here? My thinking on this is also affected by the discussion I heard yesterday at the AALS Section on Sexual Orientation and Gender Identity issues program at the AALS annual meeting in New York. At least one prominent legal scholar read the Windsor case as not really signaling a readiness by the Court to embrace marriage equality as a 14th Amendment requirement on the states. Even though Justice Kennedy’s opinion in Windsor (the DOMA case) spoke a lot about the federal government’s obligation to respect the dignity of same-sex married couples by not discriminating against them in determining federal rights and obligations, this scholar emphasized that the court spoke of that dignity as something that had been conferred by the state when it opened up marriage to same-sex couples, and that the opinion had several references to the traditional role of the state in defining marriage. If that view, drawn from a close reading of Kennedy’s decision by a legal scholar who is, at least politically, disposed to support marriage equality, accurately describes the limits of Kennedy’s support for marriage equality, then perhaps the Court concluded that the state of Utah had shown that its chances of prevailing on the merits of the appeal are decent enough to support staying the injunction pending a final appellate ruling in the case.
The important and immediate question this brief Order does not address is: What is the status of the approximately 1,300 same-sex marriages that were licensed and performed in Utah between December 20 and January 3? Are they presumed to be valid and entitled to be treated as valid by the federal and state and local governments during this interim period of the appeal? This is an immensely practical question, because we are about to launch into tax filing season for the 2013 tax year, and those couples who married by the end of business on Dec. 31 need to know which tax status they use, single or married, in filing their federal and state income tax returns and, possibly, estate tax returns, if somebody who married in 2013 has already passed away before the end of that year. Those who married out of state already know that they must file their federal returns for 2013 as “married,” since the IRS is using the place of celebration rule to determine tax filing status, but they don’t necessary know how to file their Utah state returns. Those who married in Utah over recent weeks need to be advised as to both issues. Similarly, there are likely to be questions arising over the next few months until the 10th Circuit rules as to whether those already married will be treated as married by the federal and state governments for a range of issues, including Social Security survivor benefits, for example, Family and Medical Leave Act benefits, and so forth. As for state law, the administration of Gov. Herbert had advised state agencies that marriages contracted over the past few weeks should be fully recognized for such things as spousal benefits for state employees. Whether that remains true for marriages performed prior to the issuance of the stay needs to be clarified quickly.
The Obama Administration needs to quickly address the issue of federal recognition for the existing marriages, and the Utah government should also issue clarifying statements as soon as possible.