Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, October 9, 2014

Re: SSM cert denials -- generally speaking, state courts are not bound by federal circuit court of appeals precedents

Some of the reporting about state actions regarding marriage following the Supreme Court's denial of certiorari may leave the inaccurate impression that something in our nation's federal structure dictates that state courts are bound by federal circuit court of appeals precedents. But that is not the case. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) ("The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located."). There are some older state appellate cases that appear to require state courts to follow federal authorities. Indeed, the state caselaw is surprisingly messy on this point. See generally Colin E. Wrabley, Applying Federal Courts of Appeals' Precedent: Contrasting Approaches to Applying Court of Appeals' Federal Law Holdings and Erie State Law Predictions, 3 Seton Hall. L. Rev. 1, 16-28 (2012). But most state courts have expressly stated (as they should) that they are not bound as a matter of vertical stare decisis by lower federal court decisions on questions of federal law.  Id. at 17-19.

Consider what is taking place now in South Carolina. (HT: How Appealing) The South Carolina Supreme Court has issued an injunction prohibiting probate judges from issuing marriage licenses until a federal district court addresses the issue in a pending case, Bradacs v. Haley. A lawyer for two women seeking a marriage license has criticized South Carolina Attorney General Alan Wilson for seeking the injunction. The Post & Courier reports:  

Asked whether Wilson was simply upholding South Carolina law by filing the injunction, S.C. Equality Attorney Malissa Burnette, who is representing Condon and Bleckley, said to do his job, Wilson must also uphold federal law.

"The Fourth Circuit Court of Appeals governs the South Carolina courts, and it has already stated that there's a fundamental right to marry for same sex couples and that to deny that is a denial of due process and equal protection," Burnette said. "That has already been decided. He has an oath to honor that law as well."

The South Carolina Supreme Court's order suggests that the South Carolina Supreme Court does not agree, although it is not as clear as it could be on this point. Perhaps this is because a South Carolina Supreme Court case from the 1940s stated that federal cases "are controlling of the meaning and effect of the Federal Constitution." State v. Ford Motor Co., 208 S.C. 379, 390 (1946). The court's statement about federal cases, in context, was not limited to decisions of the Supreme Court of the United States. As recently as last year, the Court of Appeals of South Carolina relied on this older state supreme court case for the proposition that lower federal cases are controlling. State v. Dukes, 404 S.C. 553, 562 (S.C. Ct. App. 2013). Regardless of what happens with same-sex marriage in South Carolina, the Supreme Court of South Carolina should clarify and fix the state's approach to the purported binding effect of lower federal court judgments.

This issue has come up in recent years in Virginia. In MacDonald v. Moose, a split panel of the United States Court of Appeals held the state's sodomy prohibition in Virginia Code 18.2-361 facially unconstitutional under Lawrence v. Texas. The Supreme Court of Virginia had previously rejected just such a challenge. Virginia courts are continuing to follow the state decision rather than the federal decision. See, e.g., McClary v. Virginia, No.  No. 0240-13-4 (Ct. App. Va. 2014)Saunders v. Virginia, 62 Va. App. 793, 753 S.E.2d 602 (2014). (For whatever it's worth, I've argued elsewhere that the Fourth Circuit's decision in MacDonald is wrong.)


Walsh, Kevin | Permalink