Marriage equality is on hold in Utah, even though it should not be. Slightly more than 1300 couples, like the couple to the right, married in Utah's equality window. The anti-gay leaders of this conservative state are on course to fight for discrimination all the way to the Supreme Court. That course began yesterday. Utah's Republican Governor Gary Herbert put recognition of those marriages on hold: his state agencies will not recognize the marriages until there has been a final disposition of the case. This entire situation demands we ask several questions: What of the 1300-odd marriages performed in Utah's equality window? Are they valid? Will they be undone if marriage discrimination is upheld? Should the state recognize them as married? Will the federal government recognize them as married.
These are real-world, Main Street concerns. The turn of the calendar to 2014 brings tax questions. Plus, uncertainty as to the legal status of a marriage could delay family planning, relocation, and employment decisions, to say nothing of the stress, anxiety, and associated depression that can result from living in a state of limbo.
The problem is that this limbo was foisted upon loving, committed couples by conservatives hell bent on discriminating against gays for no other stated reason than to maintain the status quo. This really puts the injustice of the stay and the appeal into stark relief.
At the end of the day, the marriages should be valid, at the state and federal level, regardless of what ultimately happens with this particular case.
I discuss why, AFTER THE JUMP...
There's a rule of thumb in marriage law: marriages are valid when and where performed. In other words, if you married in Nebraska on December 31, 2013 and if your marriage was legal in Nebraska on that date, your marriage is, and will be, valid. It has to be that way. Otherwise, no marriage would be safe.
What's more, the stay and the validity of the marriages already performed have nothing to do with each other: Just because the Supreme Court granted the stay does not mean Governor Herbert has grounds to invalidate the marriages.
Stays are granted to maintain the status quo because doing otherwise would cause irreparable damage. That is the most important requirement and, more often than not, is the sole legal basis on which stays are considered. Stays also require a likelihood of success on the merits, meaning that the party seeking to delay an adverse ruling has to show that they are more than likely to win the underlying case. Finally, stays are granted when, on balance, the benefits of holding everything in abeyance outweigh the harms.
As you and I both know, sometimes, there is more politics than law in these decisions. More controversial cases tend to get more stays than noncontroversial cases; high profile cases get more stays than those that fly under the radar.
But even if a stay gets granted for improper reasons, none of those reasons change the validity of the underlying marriages. Supposed irreparable damage refers to the continuation of the activity to be stayed, not to the ones already done. The balance of the harms also says nothing about the propriety of recognizing the already-performed marriages.
The last element is likelihood of success. Likelihood of success is, first and foremost, a probability function. But scholars are already debating whether the success of Utah's appeal speaks to the validity of the underlying marriages. Judge Shelby's decision declaring Utah's ban on same-sex marriage is being appealed to the Tenth Circuit Court of Appeals. If the Tenth Circuit reverses, i.e., agrees with Utah, it is not entirely clear what happens to the 1300-plus marriages performed over the last three weeks. Utah wants them invalidated, and that could happen.
There is precious little precedent on this. In 2004, New Mexico's Sandoval County married about 60 same-sex couples after the county clerk found that there really wasn't any New Mexico law against gay couples marrying. She was right; there wasn't. The attorney general stopped the county clerk from issuing any more licenses to gay couples and subsequent clerks refused to recognize the validity of the ones granted licenses. But just last year, the new attorney general of the state said only a court of law could deny the marriages' validity. That took us to a unanimous state supreme court decision on marriage equality.
California also gives us a clue as to what could happen. Now-Lieutenant Governor Gavin Newsom, who was then the mayor of San Francisco, starting marrying gay couples in 2004. He gave out about 4,000 licenses, all of which were invalidated by the state supreme court. Among those whose marriages were invalidated were Stuart Gaffney and John Lewis (right) who, along with many other equal rights pioneered, filed a state lawsuit seeking the right to marry. Those cases – In re Marriage Cases — brought us marriage equality in California before Prop 8.
If anything, the progress of marriage equality litigation shows a low likelihood of success, but our precedent is less clear on what happens to marriages already performed. It may take some time before we know the answer, and that is not just frustrating, it is manifestly unjust. The stay was unjust, the appeal is unjust, the discrimination is unjust for this very reason.
The state may not want to recognize the marriages performed in Judge Shelby's equality window, but the federal government should. The federal government, according to instructions from agencies like the IRS and the Office of Personnel Management, will recognize marriages performed in the states as long as those marriages were performed in a state that recognized those marriages. That is the "state of celebration" rule. Utah recognized the validity of same-sex marriages when the 1300 marriages were performed. And nothing has changed. The stay granted by the Supreme Court did not invalidate those marriages. Nor did it undo Judge Shelby's decision, despite what some commentators have suggested. Governor Herbert's decision to put the marriages "on hold" does not deny their validity, either. Everything is just on hold. And that doesn't change the fact that the marriages were valid in Utah when they were performed. That's the end of the story.
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Ari Ezra Waldman is a professor and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.