Jun 25, 2014

Posted in Rule of Law

Same-Sex Marriage Stays and the Rule of Law

In Herbert v. Kitchen, the 10th Circuit stays its ruling. This has to be the correct result in light of the Supreme Court’s previous intervention in the Utah litigation.

The Supreme Court issued this order in Herbert on January 6, 2014:

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.

The Court could not have spoken more clearly. The myriad rulings on same-sex marriage should be stayed.

The 10th Circuit explains its reasoning:

In consideration of the Supreme Court’s decision to stay the district court’s injunction pending the appeal to our circuit, we conclude it is appropriate to STAY our mandate pending the disposition of any subsequently filed petition for writ of certiorari.14 See Fed. R. App. P. 41(d)(2) (allowing circuit courts to stay their mandates pending the completion of certiorari proceedings); Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d at 17 (declaring DOMA § 3 unconstitutional and staying the mandate in the same opinion); Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 704, 705 (9th Cir. 2008) (issuing a stay sua sponte); see also Latta v. Otter, No. 14-35420, Order, at 2 (9th Cir. May 20, 2014) (unpublished) (relying on the Supreme Court’s Kitchen order to stay a district court injunction against a same-sex marriage ban); DeBoer v. Snyder, No. 14- 1341, Order, at 1 (6th Cir. Mar. 25, 2014) (unpublished) (same).15

The citation to the 9th Circuit order in Latta is directly on point. In particular, Judge Hurwitz’s concurring opinion:

I concur in the order granting the stay pending appeal. But I do so solely because I believe that the Supreme Court, in Herbert v. Kitchen, 134 S. Ct. 893 (2014), has virtually instructed courts of appeals to grant stays in the circumstances before us today. …

Just five months ago, a district court enjoined the State of Utah from enforcing its prohibition on same-sex marriage. Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013). The district court denied the State’s motion for a stay pending appeal, Kitchen v. Herbert, No. 2:13-CV-217, 2013 WL 6834634 (D. Utah Dec. 23, 2013), and the next day, two judges of the Tenth Circuit did the same, Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 24, 2013).

On January 6, 2014, the Supreme Court granted the State’s application for a stay pending the disposition of the appeal in the Tenth Circuit. Herbert v. Kitchen, 134 S. Ct. 893 (2014). Although the Supreme Court’s terse two-sentence order did not offer a statement of reasons, I cannot identify any relevant differences between the situation before us today and Herbert. And, although the Supreme Court’s order in Herbert is not in the strictest sense precedential, it provides a clear message—the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.

Of course this is correct. There is no other way to read the Court’s order in Kitchen. It boggles my mind how other judges, post-Kitchen, decided not to stay their ruling, only to be reversed by the court of appeals.

For example, Judge Crabb in Wisconsin declined to grant a stay, and instead scheduled a hearing on the issue, asking for additional materials. What additional facts could she conceivably need? In that interim, many couples were married, requiring the state to file an emergency motion to stay the ruling. Why couldn’t she simply stay the ruling at the outset, as the Court made clear in Kitchen? And, after a week of marriages, citing Herbert, the judge ultimately stayed the ruling.

In addition, I conclude that Herbert v. Kitchen, 134 S. Ct. 893 (2014), compels me to stay the injunction. ..

If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage. It is impossible to know the Court’s reasoning for issuing the stay because the Court did not accompany the order with an opinion, but, since Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay. In following Herbert, other courts have stated that, despite the lack of any reasoning in Herbert, they did not see any grounds for distinguishing the Supreme Court’s order. E.g., DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014).

Plaintiffs offer two grounds for distinguishing Herbert: (1) since Herbert, each of the more than a dozen district courts considering bans on same-sex marriage has concluded that the ban is unconstitutional; and (2) same-sex marriages recognized under state law in other states since Herbert have not caused any harm to the state. However, even if I accept both of these arguments, it does not change the fact that the Supreme Court’s order in Herbert is still in place. Until the Supreme Court provides additional guidance on this issue, the unanimity of federal districts is not a dispositive factor.

Why on earth was additional briefing necessary to reach that point? Why could the judge not grant the stay, immediately? Why would *any* district court fail to grant the stay? Judge Crabb, I think, answers the question:

After seeing the expressions of joy on the faces of so many newly wedded couples featured in media reports, I find it difficult to impose a stay on the event that is responsible for eliciting that emotion, even if the stay is only temporary. Same-sex couples have waited many years to receive equal treatment under the law, so it is understandable that they do not want to wait any longer. However, a federal district court is required to follow the guidance provided by the Supreme Court. Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.

Now, those joyful faces are in limbo pending the Supreme Court’s resolution of the issue. We all know how this will end at One First Street, so it’s not a big deal. But there are serious legal issues for couples in this state of limbo.

It is painfully obvious what the Supreme Court did. There’s no reason to permit the judgment to go forward. But, these judges had other ideas. I am working on an article about the rule of law, and same-sex marriage. Rather than focus on the constitutional merits, I want to address how the procedural postures of these various cases played very fast and loose with the rule of law.

I highlighted these developments in this 2013 post:

Let me preface this post by stressing that I support marriage equality, and agree with the outcomes in both Windsor and Perry. This post has nothing to do with equal protection or due process. Rather, this post focuses on the rule of law.

One of the more unfortunate byproducts of recent cases concerning gay rights has been a drastic departure from the longstanding practice of the government to defend laws until a court tells them not to.

Five years ago, Prop 8 was passed by a majority of Californians (a referendum that I would not have voted for). The Governors of California, first Schwarzenegger and later Brown, made the decision not to defend a law that was passed pursuant to their own state Constitution. The decision to withdraw from the case ultimately led to the Supreme Court dismissing the appeal, because no party had standing. Abdicating the government’s obligation to defend the law deprived millions of Californians of their vote (even though today the measure would almost certainly not pass).

On remand, even though the general practice of the Supreme Court is to wait 30 days for a remand, the 9th Circuit took it upon itself to vacate the stay. (Do you remember when 20 judges on the Central District of California Bankruptcy Court found DOMA unconstitutional? In a totally bizarre and unprecedented opinion? DOJ appealed). Within hours of the 9th Circuit’s order, the California Attorney General officiated at the first marriage with the eponymous plaintiffs from Perry (I watched the beautiful ceremony). The losing party in Perry, which had every right under the law to petition for a rehearing in the due course, was forced to file an emergency appeal, asking Justice Kennedy to stop ongoing ceremonies. The Supreme Court denied it. Again, the 9th Circuit and the California Attorney General, in their haste to get the marriages started, departed from the rules [by sua sponte dissolving the Supreme Court’s stay, and not waiting for the mandate to issue].

Let’s turn to the federal government. As pointed out during oral argument, the President has long defended and enforced federal laws, unless he deemed them to be unconstitutional, or infringed on his own executive power (an OLC opinion to that effect has been on the books forea long time). The President made the odd decision to stop defending the law, but still enforced DOMA. I guess this is like “taking care, with discretion, that the laws are faithfully executed.” By withdrawing from the appeal, similar to the case in California, the federal government potentially deprived standing to anyone challenging the law (ultimately the Court founding standing for the BLAG, but this was not a given). But even worse, the Administration was so intent on this case going to the Supreme Court–even if the lower court ruled in their favor, that the SG filed a petition for certiorari before judgment in the Second Circuit. It is such an odd procedural wrangling, with the sole purpose of ensuring that *someone* could appeal on behalf of the government, even if it was the BLAG. At every state, the handling of this case departed from the normal rules of the Executive Branch.

And this behavior is not confined to the federal courts. Remember, the New Mexico clerk who decided to start issuing marriage licenses during a state of confusion and said, “If the court tells me to stop, I’ll stop.” Or the Pennsylvania Register of Wills who said, “I am going by my lights here. I am going by what I think is right.” The Attorney General declined to intervene, so the Governor stepped in. Subsequently, the Governor has announced he would not appeal a judgment striking down Pennsylvania’s ban.

This is one of my summer projects.

As an aside, the 10th Circuit also addresses the fact that the Supreme Court’s denial of a stay in the National Organization of Marriage case was (probably) due to the fact that NOM wasn’t a valid party.

The Supreme Court recently denied without explanation a motion to stay a district court’s order enjoining the enforcement of a state’s same-sex marriage ban. See Nat’l Org. for Marriage v. Geiger, No. 13A1173, 2014 U.S. LEXIS 3990 (June 4, 2014). We note that in that case the named defendants declined to defend the challenged laws before the district court. Geiger, 2014 U.S. Dist. LEXIS 68171, at *10. A third party, whose motion to intervene in the district court had been denied, sought a stay from the Supreme Court. As a result, the Court may have denied a stay in Geiger for lack of a proper party requesting one. Thus, Geiger does not clearly indicate that the Court no longer wishes to preserve the status quo regarding same-sex marriage in Utah.

Print Friendly
  • Pingback: Notwithstanding the Supreme Court’s order in Kitchen v. Herbert, Indiana District Court Fails to Grant Stay | Josh Blackman's Blog()

  • Marco Luxe

    How does: “The Supreme Court’s terse two-sentence order did not offer a statement of reasons”….+ ” the Supreme Court, in Herbert v. Kitchen, has virtually instructed courts of appeals to grant stays…” lead you to “The Court could not have spoken more clearly”?

    Nope. Not even close. Of course SCOTUS could have spoken more clearly by simply issuing an opinion revoking their well-established criteria for issuing a stay. But they were silent in their reasoning [because I belief it was purely political PR]. Their “virtual” instruction is just that, virtual – not real, not concrete, simulated. You can read into it the result you want, but that is disingenuous. You never say you disagree with the lower courts’ application of the criteria for a stay, or try to justify SCOTUS’ terseness. They owe us an explanation; it’s part of their job description. Regardless, there have been changed circumstances since the district ruling in Kitchen because subsequent marriages without the sky falling diminish the mandatory claim of harm to the applicant. If SCOTUS wanted to avoid this chaos, they shouldn’t have chickened out in Windsor or Perry with a nebulous opinion and a dismissal on standing. It seems they’re just too cowardly, I mean, politically sensitive, to speak plainly and suffer consequences to their institutional prestige.

    Regarding your summer project, state officers like Brown and Schwarzenegger properly use their discretion to decline to file appeals. Voter legislation simply requires the added step of electing state officers amenable to carry out direct democracy. This is is as it should be, as our founding fathers were properly wary of mob rule.

    • Louis E.

      Same-sex marriages CONSTITUTE “the sky falling” when it comes to marriage.The socially useful purpose of civil marriage is totally destroyed by the inclusion of any union that fails to unite male to female.

      • Scott_MI

        That’s your hypothesis. Can you support it?

      • JoeNCA

        Wow. So males and females are no longer allowed to marry? I must have missed that from yesterday’s ruling.

        • Louis E.

          Marriage no longer accomplishes its core function of promoting male-female unions as the norm for all.It is therefore no longer useful to human society.

  • Pingback: Same-Sex Marriage Appeals in Wisconsin, Utah, Colorado, and the Rule of Law | Josh Blackman's Blog()

  • Pingback: If Idaho or Nevada Seek A Stay, Does The Court Deny It Citing SCOTUS Denial Of Cert? | Josh Blackman's Blog()