The Harm of Stays in Same-Sex Marriage Litigation

Aaron Feller and Nik McFarland planned to marry on Saturday, January 11, 2014. On the morning of January 6, a cold, clear Monday in Weber County, Utah, Aaron and Nik applied for and received a marriage license at the County Clerk’s office. As they left, they were filled with excitement. They took a picture of the marriage license and posted it to Facebook to show everyone that they were finally able to marry.

Five minutes later, the Supreme Court stayed the district court’s decision in Kitchen v. Herbert, which had struck down Utah’s ban on same-sex marriage and allowed same-sex marriages to proceed immediately.

Aaron heard about the stay when he received an alert on his phone as he arrived at work, only 20 minutes after he and Nik had gotten their marriage license. Aaron called Nik and told him about the stay, but they were unsure what would happen next. Could they still marry, given that they had obtained the license legally? Or did the stay mean that marrying was illegal, notwithstanding the legally-obtained license?

Chaos consumed the next hours and days. Aaron’s boss let him leave work. Aaron spoke with a friend to try to make sense of the situation. He called several lawyers, seeking information and advice. He contacted the County Clerk’s office; they told him that they could not give him any advice because they take direction from the County Attorney’s office. He contacted the Country Attorney’s office; they said they could not provide any guidance either.

Aaron also contacted the planned officiant for their wedding, Reverend Curtis Price of the First Baptist Church of Salt Lake City. Reverend Price had married Aaron’s sister and brother-in-law. He had also married many same-sex couples in Salt Lake City at the County Clerk’s office immediately after the decision in Kitchen v. Herbert, including case plaintiffs Laurie Wood and Kody Partridge. Reverend Price suggested that Aaron and Nick proceed with their wedding. It can’t hurt to try, he said.

Aaron and Nik discussed the situation and decided to proceed. But within 24 hours they changed their minds. First, they heard that Salt Lake County would not honor marriages that had not occurred before the stay. Second, Aaron researched state law, which stated that a person who solemnized an unlawful marriage could be charged with a crime. Aaron and Nik did not want to expose Reverend Price to criminal charges, particularly if the marriage would not be recognized anyway. They talked it over and decided late on the night of January 7 to postpone their wedding.

Recalling these events, Aaron explains: “I was upset and confused. I had no idea what was going on. I wanted to give Nik answers and I couldn’t.” He was frustrated at his inability to find a clear answer quickly. He was frustrated by the answer he ultimately found. He says simply: “It was a crushing blow.”

II.

In Kitchen v. Herbert, Judge Robert Shelby invalidated Utah’s ban on same-sex marriage. His 53-page opinion held that the ban violated the U.S. Constitution on both equal protection and due process grounds. Utah’s current laws, he wrote, deny “gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.

The court announced the decision on December 20, 2013. Same-sex couples began marrying almost immediately. Utah sought a stay of the decision pending appeal, but Judge Shelby denied Utah’s request.

While hundreds of same-sex couples rushed to marry, Utah continued its efforts to stop them by imposing a stay. It filed a series of motions with the Tenth Circuit Court of Appeals. The Tenth Circuit first denied Utah’s emergency motion for a stay; then, on December 24, the court denied Utah’s request for a stay pending appeal.

Utah then sought a stay from the Supreme Court. On January 6, 2014 — as Aaron and Nik were leaving the County Clerk’s office, license in hand — the Supreme Court issued a terse order granting Utah’s motion for a stay pending appeal. The Supreme Court provided no explanation for its ruling.

By the time the Supreme Court granted the stay, over 1300 same-sex couples had already married in Utah. On May 19, Judge Dale Kimball ordered Utah to recognize the marriages of couples who had wed between December 20 and January 6. “These legal uncertainties and lost rights cause harm each day that the marriage is not recognized,” his opinion stated.

Thirteen hundred same-sex couples are now legally married in Utah, and, if Judge Kimball’s decision is upheld on appeal, their status will not change. But Aaron and Nik are not among them.

III.

Aaron and Nik met about two years ago. They currently live in Ogden, Utah. Aaron graduated from Weber State University with a degree in political science and sociology; he’s currently employed by Weber State while working toward a masters degree in public administration. He writes a funny, incisive blog, That Political Feller.  Nik is an activist for LGBT equality: he has worked to advance the acceptance of gay men and the LGBT population more generally. In 2000, when he was only 17, he came out in the Standard Examiner, a local paper — a courageous act anywhere, and particularly so in Utah. His willingness to speak out inspired a follow-up piece about him, and, a decade later, a piece about the legality of same-sex marriage.

Currently, while Aaron works and continues his education, Nik takes on a supportive domestic role in their relationship through tasks such housework, laundry, and cooking. Nik is artistic; Aaron recalls a time that Nik crafted a wand out of some wood for Aaron’s nephew who loves Harry Potter. As a couple, they share a community of loving relatives and friends who support their relationship. Indeed, despite the official position of the Mormon Church, Nik’s mother, a devout Mormon, accepts Nik’s sexual orientation and has welcomed Aaron into their family.

When they met, neither Aaron nor Nik expected a serious relationship. But after only a month, Aaron says simply, “We fell in love.” Just a couple months into their relationship, Nik asked Aaron to marry him. Aaron recalls the proposal:

“We happened to be outside and just talking and laughing together. . . . [Then] Nik walked up to me and asked me to marry him.  It was surprising, but he told me he decided to ask me because of the way I had smiled and laughed in a moment when we were outside.  He said that laugh and smile sealed the feelings that he had for me. Of course, I said yes.”

Aaron and Nik decided to get married long before they had ever heard of Judge Shelby or Kitchen v. Herbert or even dreamed that same-sex marriage might come so soon to Utah. Aaron recalls, “We knew we might have to wait for several years until we could get married. But we knew it was worth the wait.” Optimistically, they expected that it would be at least five years.

They were wrong. Less than two years after Nik’s proposal, Judge Shelby’s ruling invalidated Utah’s same sex marriage ban. Immediately, Aaron asked Nik if they could go down to the County Clerk’s office “right that second.” Nik laughed at him. Aaron was initially confused: “I just wanted so bad to be his husband.” But, as Aaron tells it, Nik sat him down and reasoned that it wasn’t necessary to “run out and get it over with.” After some compromising, they agreed to wait, and soon set a date — January 11, 2014.

At all times, the progress of same-sex marriage litigation through the courts exerted a powerful influence on Aaron and Nik’s planning for their wedding. They worried constantly that the Supreme Court would issue a stay. They struggled to balance that possibility with their desire to take the time to plan, in Aaron’s words, “a nice wedding, not too expensive or over the top, just a nice celebration of our love that every heterosexual is able to have.” Aaron and Nik decided to invite their family and close friends, about 50 people in all. They scrambled to find a venue; ultimately Nik’s uncle was able to secure a clubhouse at his condo complex. The space was a little small for their guests, but they decided it would suffice. They invited guests via Facebook: not their top choice, but the most efficient under the circumstances. Aaron recalls, “The planning was hectic and somewhat stressful. We didn’t want to rush, but at the same time, we felt that we had to.”

Despite the urgency surrounding the wedding, Aaron and Nik found ways to make the celebration their own. They chose theme colors: red, white and black. They found coordinating tablecloths and vases with red and white flowers. Aaron’s sister Stacy offered to make their cake as a wedding present: they asked her to incorporate their colors into the cake, and otherwise to surprise them. Aaron and Nik assembled a wedding party of their closest friends and family. Nik picked out clothes for the men: black dress shirts, vests, red ties. He planned to take the women in the wedding party out shopping.

But when the Supreme Court issued the stay, Aaron and Nik’s wedding planning abruptly came to a halt. The much-anticipated shopping trip never took place. The unused decorations are boxed up and stored in their basement. Their unworn wedding clothes hang in the back of their closet.

The delay affected much more than just the wedding. It also prevented Aaron and Nik from enjoying a range of the benefits of marriage. Nik does not have health insurance, and legal marriage would allow Aaron to add Nik to his insurance plan. Nik suffers from agoraphobia and severe anxiety: therapy has helped in the past, but is currently unaffordable. Aaron explains: “Nik does see a psychiatrist every few months for the cost of $80, but that visit is only good enough to get his prescription refilled.  We don’t have the money to get him more help than that.”

Marriage would provide other benefits. Because Aaron works at Weber State University, his immediate family, including his spouse, can take courses for free. Nik was excited at the prospect of a college education. He hoped to take online classes, particularly English classes, so that he could become a writer. The stay delayed that education indefinitely — yet another disappointment.

The medical and educational consequences of the delay have caused immediate, serious and tangible harm. “The delay in marriage,” Aaron says, “is a delay in Nik’s overall well-being.  It makes me angry.”

The stay has also imposed psychological and emotional harm on Aaron and Nik. That harm is perhaps less tangible, but no less real. “It has been agony waiting for the Tenth Circuit,” Aaron admits. Almost every day, Nik asks him, “Have they decided if we can get married yet?” Each time Aaron has had to tell him no. In the meantime, Aaron remains constantly logged into Twitter, refreshing his home page to see whether the Tenth Circuit has decided the case yet. He likens his own behavior to obsessive compulsive disorder. A false rumor on May 23 that the court would issue its opinion triggered intense hope and anxiety, followed by let-down and frustration when it became apparent that no ruling was forthcoming.

And the passage of time inherent in a stay has other costs. Nik’s grandmother, Dezella Behunin, loved him deeply and supported him unconditionally when he first came out. Nik is certain that Dezella would have loved Aaron as one of her own grandchildren. She would have loved to have seen Aaron and Nik’s joy on their wedding day. Dezella passed away several years ago, before Aaron met Nik. But her memory reveals another harm that stays can cause. For some couples, a stay of even a few months might make the difference between the presence and absence of a cherished family member at a wedding celebration.

Finally, the benefits have powerful symbolic meaning to both Aaron and Nik. As Aaron puts it, “those benefits help me take care of the man I love.” Under Utah’s same-sex marriage ban, “we are not guaranteed any benefits, rights, or recognition that would allow us to feel equal.”

IV.

Much of the legal analysis and media attention surrounding same-sex marriage has focused on the substantive results. Will courts strike down state bans on same-sex marriage? Will courts require states to recognize the marriages of out-of-state residents? How will the Supreme Court analyze the issue? This important discussion sometimes omits analysis of whether and why lower courts stay same-sex marriage decisions.

In considering whether to deny a stay pending appeal of the decision in Kitchen v. Herbert, the Tenth Circuit considered 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.” After considering the factors, the Tenth Circuit held that a stay was not warranted. (Some courts frame the factors a little differently, but for purposes of this blog post I will use the Tenth Circuit formulation because it’s the jurisdiction relevant to Kitchen v. Herbert and because the differences are minor and immaterial to the outcome.)

Several federal appellate courts have indicated that the first factor is most critical. If the party who won before a lower court is likely to win on appeal, appellate courts should not step in to prevent them from enjoying the result of their victory. But the evaluation of various harms captured by the other factors is also important. As the Seventh Circuit recently stated in In re A&F Enterprises (2014), the point of a stay is to “mitigate the damage that can be done during the interim period before a legal issue is finally resolved on its merits.” According to the Seventh Circuit, “the goal is to minimize the costs of error.” The court described the approach as a “sliding scale”: that is, “the greater the moving party’s likelihood of success on the merits, the less heavily the balance of harms must weigh in its favor, and vice versa.”

The first prong of the stay inquiry — likelihood of success on appeal — goes to the substantive question of whether bans on same-sex marriage are constitutional. Because this issue has already received a great deal of attention, I will not focus on the merits of the appeals except to note that, after the Supreme Court’s 2013 decisions in United States v. Windsor and Hollingsworth v. Perry, thirteen decisions have held that state bans on same-sex marriage violate the Constitution, and none has held otherwise. It’s also worth noting that 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, the likelihood of success on the merits appears high.

Rather than discuss the substantive outcome in more detail, I wish instead to direct attention instead to the third prong of the analysis: that is, to the harm suffered by same-sex couples when courts grant a stay. Many people favor staying lower court decisions during the appellate process. This is true even among staunch supporters of same-sex marriage. “What is the harm in waiting a few months while the appeal runs its course?” some argue.

As Aaron and Nik’s story so clearly reveals, stays are far from harmless for the thousands of couples waiting to marry, and in some instances the harm will be irreparable. Stays mean that many would-be spouses remain uninsured or underinsured, depriving those with physical or mental health issues of life-changing medical care. Stays delay education for those who could not afford it without benefits gained through a spouse; if the delay is lengthy, it may shape the course of a career. Stays delay the experience of parenthood for those who wish to bring children into their family but hesitate to do so without the protections afforded by legal marriage. Stays may increase income tax liability. Stays complicate the disposal of estates among even the most devoted domestic partners. Stays risk preventing beloved relatives, particularly those who are elderly or in poor health, from sharing in the joy of seeing their children, grandchildren, nieces, and nephews wed the people they love. Stays impose immense psychological and emotional costs on the thousands of couples waiting anxiously to learn whether they can legally marry. And for some couples — those where one or both people are elderly or seriously ill — stays might foreclose marriage altogether.

Life doesn’t stop just because a court grants a stay, and the delay of rights is intimately woven together with substantive scope of the rights themselves. To return to Judge Kimball’s words: “Lost rights cause harm each day.”

Those who advocate staying decisions while appellate courts consider the issue of same-sex marriage might argue that stays also guard against future harm to same-sex couples. That is, it would be better for same-sex couples not to get married at all than it would for them to get married and then have a higher court invalidate their marriage. No doubt this would be an extremely disappointing outcome. But even taking this possibility into account, at worst same-sex couples would be placed back in the position that they were prior to litigation, as loving couples who are unable to marry legally. Of course the scenario I have raised would impose psychological costs, disappointment, thwarted hopes. But who is to say that the experience of having a marriage invalidated is worse than the ongoing experience of being denied the right to marry? Or, put differently, shouldn’t the couples themselves get to make the decision whether to marry and risk subsequent invalidation of their marriage? My intuition is that the many actual benefits that would result from allowing same-sex marriages to proceed while appeals are pending outweigh the hypothesized harms to couples that would result from the invalidation of those marriages.

In short, I think that courts — including the Supreme Court — are underestimating the harms to same-sex couples who are waiting to marry. The harms that accrue to waiting couples are significant, and for at least some, those harms will be irreparable. A stay means much more than waiting a few months, or several months. For at least some couples, a stay will be life-altering.

A complete analysis of all four factors is a topic for another post. But with that said, my own view is that courts that strike down same-sex marriage bans should also deny motions to stay their decision and should allow same-sex marriages to proceed immediately.

V.

Although much of the discussion surrounding same-sex marriage litigation centers on the substantive issues in the case, we ought to remember that stays matter too. Stays matter to 1300 already-married same-sex couples in Utah who, if the district court’s recent ruling stands, will remain legally married and have access to all the rights and privileges of marriage. Stays matter to the thousands of couples who, like Aaron and Nik, are still waiting to marry, some with marriage licenses already in hand.

Currently, nine courts have stayed rulings striking down same-sex marriage bans. As a result, thousands of couples wait, along with Aaron and Nik, for the day they can marry — the day they can invoke the right that more than a dozen judges have already held to be guaranteed by the Constitution. They wait, constantly checking the news, hoping for the best, fearing for the worst. Let’s hope their wait is a short one.

Aaron and Nik shared their story with me over email. They both reviewed and approved a final version of this blog post prior to publication. I am honored that Aaron and Nik have allowed me to write about their experiences. I had not thought enough about stays in same-sex marriage litigation prior to our exchange, and their story has made me realize the pressing importance of this issue.

Update 6/5/2014: In a subsequent post, I analyze the four factors that courts consider when deciding whether to grant a stay. I conclude that a lot of courts — including the Supreme Court — are improperly granting stays of decisions invalidating same-sex marriage bans. Stays are not costless and they’re not getting enough attention.