Now that we found law what are we gonna do with it?
June 27, 2015 5:11 PM   Subscribe

I wish to understand the practical process of what happens in the wake of a court ruling such as yesterday's.

[I apologize for any misused legal terminology here; while I've watched ER and thus I have a TV doctorate in medicine, I haven't watched anything like Law and Order to have a similar TV doctorate in law.]

1. We have a law.
2. Someone brings a case to court about the law.
3. The court makes a decision.
4. ???
5. Profit!

I am curious in a general sense, here. Yesterday's gay marriage ruling had me wondering about this, but this question is not specifically about this ruling. There's certainly going to be some stuff that happens with this ruling that won't happen with other smaller/narrower ones. I would also like to know about instances that might apply to another case but not this particular one.

So what happens in step 4 up there? Let's assume it's set in stone with no appeals; this thing is gonna happen. I would guess that in a case that applies to just a single law or portion of a law, that law becomes effectively void. Does the legislature at the same level (i.e. federal law and federal ruling) need to formally repeal it, or do they somehow acknowledge that it's void, or what?

And with broad rulings that affect many different laws and portions of laws, how do we know which ones need to be changed? Is every line reviewed to make sure? As in, we have a good idea of which laws need to be adjusted to account for two partners of the same gender, but there are ones that are going to be non-obvious and missed. If someone runs into one of those instances, does what they're doing go through with reference to the ruling and then the legislature makes a note to fix it?

Again, I understand this is a very complex topic. I am just looking for the idiot's version on the broadest processes that need to happen, and interested in anything related that might be notable.

Thank you!
posted by Evilspork to Law & Government (20 answers total) 9 users marked this as a favorite
 
There are basically two things that can happen.

1. "Well, we had a law like that but now it's moot, so we'll ignore it and pretend it doesn't exist." So some localities which previously refused to issue marriage licenses to non-hetero couples will start doing so.

2. "Damn the court! We're still going to proceed just like we were." And some localities which previously refused to issue marriage licenses to non-hetero couples still won't, and eventually someone will take them to court about it, and it might go through a couple of court trials and eventually there will be a judge's order. Which they may still ignore. The amount of foot-dragging that can happen when someone wants to impede progress is astounding.

A good example of this is certain court decisions regarding issuance of "concealed carry weapon" licenses in the District of Columbia, and certain other gun control laws there (such as placement of gun stores). It used to be that you had to prove a reason why you thought you needed to carry a gun, and convince the authorities of same. Turns out that as a practical matter almost no one succeeded in doing so, and maybe four or five such licenses were issued per year in the District.

It went to court, and the plaintiff won, and DC was ordered to open the tap. But they still haven't; they found other ways to impede issuance of such licenses. If it keeps going like this, we'll start seeing Contempt of Court citations, I think.

The same thing is likely to happen in the case of marriage licenses. A lot of areas will comply with this decision, and a lot of other areas will resist it kicking and screaming. It'll be years, maybe even decades, before we reach 100% compliance.
posted by Chocolate Pickle at 5:36 PM on June 27, 2015 [1 favorite]


This is very different from a law that is subject to interpretation such as how one proves a need to carry a concealed weapon. Any municipality that refuses to issue a marriage license to a same sex couple will very quickly find itself subject to a federal court order to comply with the law.

OP, there are some terrific books about how Brown v Board of Education was implemented. It had a subjective component, in the respect that school districts were asked to desegregate themselves with all deliberate speed, and there came a point at which certain districts had to be forced to comply.

But the Supreme Court is the court of last resort. When it rules, the order becomes the law of the land. Arbitrarily disobeying the law carries consequences.
posted by janey47 at 5:53 PM on June 27, 2015 [3 favorites]


Arbitrarily disobeying the law carries consequences.

True. But it can sometimes take years for the consequences to manifest, and it usually requires action by other, lower courts.
posted by Chocolate Pickle at 5:57 PM on June 27, 2015 [1 favorite]


Not in the case of a settled law not subject to interpretation.
posted by janey47 at 6:09 PM on June 27, 2015


So what happens to the states/officials who are refusing to issue same-sex marriage licenses today? What is the process for bringing them into compliance, since they don't regard the Supreme Court ruling as the law of the land?
posted by SakuraK at 6:40 PM on June 27, 2015 [1 favorite]


Sakurak are you implying that *after* the ruling was handed down, one or more municipalities refused to recognize the law? I know there was a jurisdiction that refused to issue licenses ordered by a federal court because that state supreme court had ruled differently but to argue that the ruling by the supreme court of the US is not the law of the land is crazy. If that were an argument that could be made, don't you think Scalia would have made it?
posted by janey47 at 6:52 PM on June 27, 2015


Does the legislature at the same level (i.e. federal law and federal ruling) need to formally repeal it, or do they somehow acknowledge that it's void, or what?

Nope.
posted by JackBurden at 6:59 PM on June 27, 2015 [1 favorite]


Another decision handed down yesterday had to do with the Armed Career Criminal Act, a portion of which was declared unconstitutional. One of my close friends is a federal defender, and her office and all other defenders offices across the country spent most of yesterday reviewing their clients and cases to locate clients who might be similarly situated to the plaintiff. They will immediately begin filing petitions on their "easy" cases, that say, in essence, "My client's case is exactly similar to Johnson's, so he should have a reduced sentence/be released." And then after the easy ones they'll start preparing appeals for cases that are ARGUABLY similar and they'll have to try to convince the judges.

At the same time they'll be reviewing the statute as a whole, and similar statutes, to see if they think that this bit being declared unconstitutional maybe loosens up another section of the law that they can take to the Supreme Court.

"Does the legislature at the same level (i.e. federal law and federal ruling) need to formally repeal it"

Generally not -- it's simply in effect. Typically the executive branch (president, governor, or local authorities of various sorts) will issue instructions to its employees. In this case, county clerks (typically elected) ordering their office to start issuing marriage licenses.

"And with broad rulings that affect many different laws and portions of laws, how do we know which ones need to be changed?"

Lambda Legal, the ACLU, and other organizations will have been researching this and preparing their state affiliates with lobbying information and fact sheets for legislators -- one of the useful things lobbyists do! Generally the staff of various governmental offices (governor, attorney general, treasurer, whatever -- as well as legislators themselves, particularly the majority and minority leaders) will also have staff responsible for researching these issues and writing them up, and rendering legal opinions. Part of the job of most government attorneys (my husband is one) is to proactively remain up to date on federal legislation and federal litigation that may affect your particular agency's operation. (If my husband thinks there's something that might affect his agency, he writes up a memo and sends it to the governor's legal staff and to the legislative committee that oversees his agency to alert them -- he doesn't wait for them to tell him.) When you wonder, "What do all these employees of the Iowa Senate Minority Leader's office do?" -- that's part of it!

Finally, local government bodies typically have a state-level organization (either organized by the state, or a non-profit, which may or may not be a lobbying entity as well) that retains legal advisers (either on staff or hired from a firm) who provide this kind of advice to local governments. When I was on the school board, we had the Illinois State Board of Education, a state-level agency, that provided us with updates on state and federal law that would require us to update our school policy book. We also had the Illinois School Board Association, a non-profit lobbying and advocacy organization, that provided us with updates. We also sometimes got updates from the state-level organization for the teachers union, as well as the lobbying/advocacy entity that represented superintendents. So, basically, there were a lot of people in official and unofficial roles whose JOB included "tell school boards when they're going to need to change something to comply with a change in the law." And then there were us on the Board to review the policy book, and also attorneys -- internal (working for us) and external (law firm specializing in school law) -- who would review our policies when the law changed.

If a state law change were passed this week, we'd probably get a "local schools must be in compliance by July 1, 2016" -- giving us a year to sort out our policies. Legal cases typically require us to comply immediately, but we generally have been following those and are aware that we may need to comply very quickly depending on the ruling. As a practical matter, notice requirements for local policy or ordinance changes range between about 14 days to 60 days, so it may take as long as 60 days to change the local rules while complying with notice requirements, but you're allowed to backdate the effective date in most cases. (So you could say, for example, "We're posting the notice to change our policies to recognize gay marriages and with the second reading and everything it we'll vote on it August 4, but any employees who apply to have their marriage recognized between now and September 1 will have their insurance premiums backdated to July 1 and refunded as necessary. After September 1, we'll follow normal 'qualifying event' rules.") Generally local governments are allowed a reasonable amount of time to sort out bureaucratic issues like insurance and taxes and whatnot (rather than simple directives like "hand out marriage licenses") because the courts recognize there's paperwork and private companies and coordination between government agencies. You're typically required to pay people back (possibly with nominal interest), but generally the courts won't penalize you for, say, a year, if you appear to be making honest efforts to comply with the law, and are just trying to sort out how it works and adjust insurance and so on.

When I was on my local school board, we had a ruling handed down by the (state) appellate court that we had to have a moment of silence every morning in the schools. That happened on a Friday, and by Monday at noon we had language from our lawyers, and advisory notes from the state board and the state association, telling us how to change our policies -- which did require a vote. The Board voted Monday evening (we were the first board in the state to meet after the decision, and so the first one to vote on it) to change our policies to require the moment of silence; Tuesday morning, the state supreme court issued a stay on the ruling while they considered the issue, so our policies had to revert to the no-moment-of-silence status, and no other school boards in the state voted on it because of the timing of their meetings. I remember this in particular because our school board were vilified as IDIOTS in the media ... except for me, because I voted against it in a strictly symbolic vote (I knew it would pass so I was not worried about putting our schools out of compliance with a court ruling) because I think required moments of silence are DUMB and probably unconstitutional, and I had my 2 minutes of fame statewide being quoted in all the newspapers and on NPR as the one person who "anticipated" the supreme court's stay. This was fun and exciting for me and I felt very smug about it (and every teacher you have EVER HAD will call or e-mail you or your mother if they hear you quoted on NPR), but of course it was no particular virtue or wisdom on my part -- it was a simple accident of timing, and my plain cantankerousness about "rules that are dumb."

(And then later I got a lot of letters from crazy people about WHY DO YOU HATE JESUS and also some Tea Party folks who said, "You did the right thing because while I definitely want my kids to pray to Jesus every day I'm afraid they might have a Muslim teacher and then THE STATE MIGHT MAKE THEM PRAY TO ALLAH AND THAT WOULD BE EVIL" and I was like, "this is why we can only be semi-friends because you come to the right outcome but for appalling reasons.")
posted by Eyebrows McGee at 7:05 PM on June 27, 2015 [20 favorites]


I thought of another point on gay marriage specifically. When Illinois began debating civil unions (we passed those first and got to the gay marriage party a bit late), our School Board included that in our negotiations with our unions, so that our teachers' union contract said, for example, that X, Y, and Z applied to married teachers (tax benefits, insurance premiums, etc.) and that if the state passed a gay marriage or civil union law (or was ordered by the courts to recognize them) during the duration of the contract, the same X, Y, and Z would apply to civilly unionized teachers.

So when Illinois DID pass civil unions into law, all of our union contracts already had language in place for that contingency, and our benefits companies (operating in Illinois as they do) already were prepared for that possible outcome, and it was basically a 100% no-hassle transition -- employees who ran right out to get civil unions the first day they were available just filed a "qualifying event" form and got their health insurance, and our financial people were aware of the tax issues and were able to advise employees on how to handle it, and we were able to set up proper withholdings to give employees state tax benefits (but not federal ones at that time).

This ruling will require changes to tax withholdings for couples who are now able to receive federal tax benefits, but we're well-prepared for that and the comptroller's office has a budget line ready for "tax adjustments" in case gay marriage became federal law. Employees with same-sex marriages in Illinois will just be transitioned to also having their federal withholding recognize that; probably they'll get an e-mail in the next week or two from the comptroller telling them of their change in status and detailing their tax withholding options, and that if they take no action then their withholding for federal purposes will be X.
posted by Eyebrows McGee at 7:21 PM on June 27, 2015 [2 favorites]


This is "the law of the land", but it's civil law, not criminal law. A local official who refuses to issue an SSM license cannot be arrested, tried, convicted, and imprisoned/fined for doing so.

The enforcement mechanism is for people harmed by this (in other words, people with legal standing) to sue. Because of immunity, the individual official in question cannot be sued, so the suit would be against the agency employing him.

Once it came to trial, and judgment was rendered, then if the case was decided for the plaintiffs the court would begin issuing court orders to force the agency to issue SSM licenses.

The duration of this process is usually measured in years.
posted by Chocolate Pickle at 7:24 PM on June 27, 2015 [1 favorite]


So what happens in step 4 up there?

In a court case, a an order/judgment issues. For example, if someone refuses to issue a marriage license, the aggrieved party can get an injunction or the equivalent from a court, tout suite. (Imho, a government employee who refuses to do their job based on "religious" or moral beliefs should also be disciplined/fired.)

In terms of unconstitutional laws, they are basically without legal force, whether repealed or not, and any effort to enforce them will be futile.

Conflicting state constitutional provisions are also basically voided under the U.S. Constitution's Supremacy Clause.
posted by bearwife at 8:05 PM on June 27, 2015


A post on SCOTUSblog talks about what will happen after the decision in Obergefell v. Hodges:
Under the Supreme Court’s rules, it does not issue a formal order to put into effect a decision. Rather, the Court’s clerk will send a copy of the decision to the lower court whose ruling was being reviewed — in this case, the U.S. Court of Appeals for the Sixth Circuit, which had upheld the same-sex marriage bans in all four states in its geographic reach.

That transmission is likely to occur within a few weeks, adding the states of Kentucky, Michigan, Ohio and Tennessee to the places where same-sex marriage will become available. Cases involving the other ten states where bans had remained in force up to Friday are likely to be resolved quickly by the federal appeals courts in the First, Fifth, and Eighth Circuits. In fact, within hours after the Court issued its rulings, lawyers for same-sex couples and state officials began filing new pleas in lower courts to let same-sex marriage licensing to begin, and officials in a variety of states went ahead to issue such licenses.
we have a good idea of which laws need to be adjusted to account for two partners of the same gender, but there are ones that are going to be non-obvious and missed. If someone runs into one of those instances, does what they're doing go through with reference to the ruling and then the legislature makes a note to fix it?

Lawsuits can address ambiguity that may exist after a court decision:
The Kennedy opinion closes with an assurance that churches and other groups that oppose same-sex marriage on religious grounds can continue to express their views. But that pledge may not provide much legal protection for a florist who does not want to furnish flowers for a same-sex marriage ceremony, for example; we can expect the precise scope of this protection for religious beliefs to be the focus of lawsuits in the not-too-distant future.
Legislatures can also address non-obvious and missed issues, although these examples of proposed laws would likely lead to more lawsuits:
At the federal level, the First Amendment Defense Act is a good place to start. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. States need similar policies.
Wash, rinse, repeat.

So what happens to the states/officials who are refusing to issue same-sex marriage licenses today? What is the process for bringing them into compliance, since they don't regard the Supreme Court ruling as the law of the land?

According to the U.S. Marshals Service:
History is often made when one person stands his ground and demands his dream. But history needs its enforcers. And when James Meredith sought to legally become the first black person to attend the University of Mississippi 40 years ago, the duty of upholding the federal law allowing him to do so fell upon the shoulders of 127 deputy marshals from all over the country who risked their lives to make his dream a reality.
posted by Little Dawn at 8:16 PM on June 27, 2015 [3 favorites]


Often the offending provisions remain in place and are just ignored.

Section 256 of the Alabama Constitution, requiring racial segregation of schools, is still in force. Several efforts to repeal it have fallen short. Section 182 is also still in force. That section "disqualified all idiots and insane persons, men who married interracially, and those convicted of 'crime against nature' (homosexuality) from registering and voting."

See the Wikipedia article, section on racial discrimination.

Neither will ever be enforced, yet they remain.
posted by yclipse at 4:11 AM on June 28, 2015 [1 favorite]


To all who took the time to provide such comprehensive replies- thank you. This is was incredibly helpful and answered so many of my own wonderments. "What's next?" seemed crass to ask in the midst of all the celebrating but I really wanted to know.

And it's the best post title/earworm EVAR.
posted by I_Love_Bananas at 4:43 AM on June 28, 2015 [1 favorite]


On the tax side, the IRS and states will need to issue guidance as to whether couples can file amended returns for open years to change their filing status from single to married filing jointly/separately. This impacts people who were married in, say, Massachusetts, but reside in say, Arkansas. After Windsor, couples living in states that recognize their marriage were permitted, but not required to, file amended returns for open years (essentially the last 3 tax years). I imagine something similar will happen in this case (but with respect to all states). If they haven't filed their 2015 returns yet (many couples filed extensions so they could see what happened w Obergefell), they will probably be required to file original returns on a married basis. The interesting part will be what the individual states do, and what they'll be required to do. People may also need to get reimbursed for income and payroll taxes paid on domestic partner health coverage imputed income.
posted by melissasaurus at 4:51 AM on June 28, 2015 [1 favorite]


To answer the question of whether anybody deletes the old laws, it's complicated. You can think of laws in this case as either a book (or series of volumes) with an ever-increasing errata, or (if you understand databases or source control) a single change log or revision history.

In the old days, everything was printed, perhaps by a third party publisher (say, Westlaw and its predecessor companies), and as new court rulings were issued they'd be dutifully recorded in the next volume of whatever series and all the lawyers and law libraries who subscribed would be shipped a copy of that new volume. So if a ruling declares a particular law invalid, the original law will be in whatever volume was published after its passing, and the new precedent will be in a later volume. There are weird complications that result from this, and big firms used to have (relatively) low-wage researchers who were responsible for finding all the updated precedents across multiple volumes. Small firms (like, say, my dad's) got by on their own research time and, in many cases, their own knowledge of relevant case law (e.g. "the original precedent was in this case, and the specific situation that's more like mine was argued in this other case.") Once everything started to be created (if not kept) electronically in the 90s, law book publishers tried really hard to quit printing and shipping heavy books … but then it turned out they still needed to print some books no matter what they did, so they backed off that stance a little.

That said, sometimes a complete new edition will come along. In that situation someone has indeed gone through and noted the laws and line items that have been rendered invalid or obsolete since the last major edition and added forward citations, and all the lawyers and law libraries will have to pay for the new edition and figure out how to dispose of the old one.

But still, that's all the old way of doing things.

Now, many state and municipal laws will be issued electronically with no officially sanctioned printed edition at all (often with some sort of complicated arrangement where a publisher has exclusive rights to create a print edition, but they'll only do print on demand, and charge usurious rates for that). This is sort of a good news, bad news thing. When new versions of the relevant PDFs are created, they can incorporate recent changes and even include, say, strike-through formatting like you might see in a version control system. But they also might continue to do things in some way that resembles the old way, where there will be a main PDF for the last "published" edition of the code, and one or more addenda for each chapter.

If you're a practicing attorney you'll subscribe to some sort of online access (e.g. Westlaw, Lexis) and they'll maintain a copy of the code along with the most recent updates. Depending (again) on exclusive arrangements, one publisher may have the laws for one jurisdiction, and and a different publisher could have the laws for another, so depending on where you practice you might need multiple subscriptions (or access to a law library that has them). In online services, the publishers will maintain all the forward citations, so you'd find the original law, and if it was ruled obsolete or invalid, you'd also find a forward citation attached to it with the ruling or law that modified or ended its effect.

It's rare but not unheard of for a jurisdiction to issue a whole new edition of its code (municipal, state, federal). This happens in response to the agglomeration of addenda documented above and/or whenever a significant portion of the law is rewritten to simplify/streamline/modernize/whatever the code. In DC, for instance, there were major versions of the code released in 1973, 1981, and 2001 (at least, those are the ones I can easily find reference to online). So if that happens, there may be a footnote in the history of a chapter providing citations for additions and removals, but some things may also just be dropped. For instance, you may have heard of blue laws that codified official restrictions based on prevailing religious traditions. Sometimes these laws are explicitly repealed (like how DC repealed its ban on Sunday liquor sales); sometimes they're just sort of dropped in a new edition of the code (as in the case of Sunday retail sales of anything, not just alcohol, which used to be banned in many states).

And finally, some jurisdictions are getting more or less into the true modern age, with annotated web-accessible versions of the code and even an argument that source code management could be used for this purpose. Note that neither of those is official, but the DC Code site is operated more or less with official blessing, while the U. S. Code project in Github is really just somebody's pet project as a proposal for how it could work.

Source: IANAL, but IAAL's Kid. I used to have to deal with the law books (pull them off the shelves, put them back, and move them into a new office), and eventually I helped my dad with all his technical troubles when Westlaw tried to force him online in its aborted attempt to stop printing books. I also read a lot of DC law when I had to sue an old landlord in small claims court (I won).
posted by fedward at 8:58 AM on June 28, 2015 [2 favorites]


Also, there's a weird footnote of constitutional history known as Article the First, laying out how seats in the House should be apportioned. It was the first proposed amendment to the Constitution, never ratified, and it is generally assumed to have what programmers would call a bug (referred to as a "scrivener's error" here). It reads:
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more [emphasis added] than one Representative for every fifty thousand persons.
Earlier drafts of Article the First said "less"in the last sentence where the final version says "more" and nobody knows why it was changed. Could have been sabotage, could have been a simple scrivener's error, could have been the result of a weird late night argument that wasn't documented anywhere else. Anyway, it was never ratified so there hasn't been any Scalia vs Roberts sort of argument about whether the "more" was really supposed to be "less," but it's the sort of thing that, had there been version control in 1789, we might have had a better understanding of. Or the bug could have been fixed, heading 200+ years of confusion about why it says "more" there.

Even without ratification, Congress attempted to keep up with it, more or less, up until the point they decided that 435 was enough, and now every seat in the House represents not 50,000, but over 700,000 people. If Article the First had been ratified (and not subsequently modified by an additional constitutional amendment), the House of Representatives would now have over 6000 members.
posted by fedward at 9:50 AM on June 28, 2015 [1 favorite]


When the Connecticut Supreme Court ruled in favor of gay marriage, the governor announced that the state would not fight it, and the legislature passes a law implementing the changes required.
posted by SemiSalt at 1:16 PM on June 28, 2015 [1 favorite]


The foot dragging begins: Texas attorney general says county clerks can refuse gay couples
posted by Chocolate Pickle at 1:24 PM on June 29, 2015


Same-sex marriages go forward in south despite leaders’ reluctance [WaPo]
Several experts said it is unlikely that a clerk would be legally permitted to opt out of same-sex marriage services.

“I’m aware of no general legal doctrine or precedent holding that county or other public officials are exempt from abiding by rights articulated by the Supreme Court in the event the religious beliefs of those public employees are in conflict with the federal right,” said Daniel Pinello, a professor at the John Jay College of Criminal Justice in New York.
posted by Little Dawn at 7:04 PM on June 29, 2015


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