Yesterday the Supreme Court declined to stay the federal district court’s decision to strike down Oregon’s ban on same-sex marriage. Since United States v. Windsor, eight federal judges have struck down state bans on same-sex marriage. Six of those decisions have been stayed pending appeal (Idaho, Michigan, Oklahoma, Texas, Utah, Virginia); two have not (Oregon and Pennsylvania). The common theme appears to be that the state government did not appeal the ruling in Oregon and Pennsylvania, while in the other cases it did.
It’s time for courts, including the Supreme Court, to stop staying decisions that invalidate bans on same-sex marriage — regardless whether the state decides to appeal the decision or not. In determining whether to grant a stay pending appeal, courts consider four factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) risk of harm to the public interest. Winter v. Nat. Res. Def. Council (2008). Different courts formulate the test for whether a stay should be granted slightly differently, but the plain-English version is consistent across jurisdictions: the court considers how likely the winning party is to prevail on appeal, the harm each party will suffer depending whether the stay is granted or denied, and the public interest.
The first factor has received a great deal of attention, so I will not retread that analysis here, except to say that most people agree that the likelihood of success on the merits is high. It’s hard to argue otherwise when over a dozen judges, both state and federal, have now invalidated bans on same-sex marriage. (The exact number depends on how you count: for example, a federal judge in Kentucky held that the state must recognize same-sex marriages legally performed in other states, but a court has yet to rule on the state’s general ban on same-sex marriage.) Moreover, according to recent research, same-sex marriage currently enjoys a record level of public support — 59% among all Americans and 78% of Americans age 18-29. And even previously-outspoken opponents of same-sex marriage now concede that same-sex marriage will inevitably become “the law of the land.” With regard to the first prong of the inquiry, then, the likelihood of success on the merits appears high.Courts agree that the first factor is the most important in the stay analysis, and the judicial consensus on the merits is, at this point, not only strong, but also unanimous.
On Monday, I wrote in detail about the third factor: the harms that results from staying a decision invalidating same-sex marriage litigation here. I told the story of a lovely couple in Utah, Aaron Feller and Nik McFarland, who have postponed their wedding indefinitely after the Supreme Court granted a stay in Kitchen v. Herbert only five minutes after they got their marriage license. And Aaron and Nik are far from alone: thousands of other couples are likewise waiting to get married because of a stay. Again, I won’t retread ground I’ve covered extensively, except to reiterate that the stories of Aaron, Nik, and the thousands of others like them present compelling evidence that same-sex couples whose marriages are delayed as the result of a stay suffer harm that is serious and in some instances irreparable. As the Tenth Circuit has explained, the infringement of an important constitutional right “for even minimal periods of time, unquestionably constitutes an irreparable injury.” Pac. Frontier v. Pleasant Grove City (10th Cir. 2005).
The first and third prong, in short, weigh heavily in favor of denying a stay. What about the second prong — harm to the party seeking the stay (here, the state) — and the fourth prong — the public interest?
States seeking stays of decisions overturning same-sex marriage bans typically make two arguments that denying the stay would cause harm to the state. The first is that denying a stay would infringe upon state sovereignty. Certainly state sovereignty is an important interest. But the argument that there is any infringement on state sovereignty at all irrevocably traces back to the first prong of the inquiry — the question of the ruling on the merits. Even under the strongest version of state sovereignty, states have no power to infringe upon individual rights guaranteed by the U.S. Constitution. And so the weakness of the argument on the merits in fact undermines the state sovereignty argument that a court should grant a stay. The other argument in favor of stays is an administrative one. Denying a stay requires that the state invest resources in issuing marriage licenses and allocating the attendant benefits of marriage to same-sex couples. But the administrative burdens are overstated: procedures for issuing licenses and distributing benefits are already in place; the only real difference is that more people would be eligible for them. And in relative terms, the increased volume would be small: although it’s notoriously difficult to define what percentage of the population is gay or lesbian, most estimates hover around five percent.
Perhaps more importantly, even if we assume that either of these arguments is persuasive, it’s difficult to argue that the harm caused by denying a stay is irreparable. State sovereignty is not so fragile a concept that a temporary stay would cause irremediable damage. Any state benefits improperly distributed could be recouped if the ban were reinstated on appeal, so the only real cost would be administrative. And much of this cost was absorbed by the many equality-minded state employees who came in early and worked late to issue licenses to thousands of eager couples.
As to the fourth prong, the public interest seems, if anything, to favor denial of stays. From a purely economic standpoint, same-sex marriages are good for the economy. Researchers at the UCLA School of Law’s Williams Institute estimate that same-sex marriages could add over $92 million dollars over three years to the Pennsylvania economy alone. Indeed, states that do not legalize same-sex marriage may soon find themselves at a competitive disadvantage to those that do — a position unlikely to please the many in-state businesses that depend on the wedding industry for some or all of their livelihood. The argument that the public interest is harmed when courts overturn voter-approved bans on same-sex marriage is likewise unpersuasive: we might argue just as easily that significant harm to the public interest occurs when we allow a majority to trample the rights of a minority.
One final issue relating to the public interest prong of the analysis is the claim some have made that we should allow appeals to run their course before allowing a change to the status quo. But this argument seems to me, at best, a wash. Why should the party who lost in the lower court get to dictate whether same-sex marriages can occur while the appeal runs its course?
In short, the familiar four-prong analysis leads to the conclusion that courts should not stay decisions overturning same-sex marriage bans. In my view, courts that have issued stays — including the Supreme Court in Kitchen v. Herbert — have done so in error. Courts should instead follow the lead of the District Court and the Tenth Circuit in Kitchen v. Herbert and decline to grant stays during the appellate process.
SCOTUSblog has a useful recent overview of some of the post-Windsor developments in same-sex marriage litigation here. And the Washington Post has a nice map tracking the status of same-sex marriage in each state here.