Alabama, Same-Sex Marriage, and the Variousness of Federal Law

Apologies to Prof. Mishkin for borrowing his title.

In this post, I’d like to discuss a topic that’s gotten some ink in connection with Alabama’s same-sex marriage case: To what extent are state courts required to follow the constitutional rulings of lower federal courts? Lots of folks have written extremely interesting pieces on this topic, such as Michael Dorf (here, here, and here), Christian Turner (here), Joe Palazzolo (here), and Howard Wasserman (here, here, here, and here). Those are great and interesting posts. You should read them!

Here, I’ll start by providing a bit of foundational information for folks who might not be as familiar with the relationship between state and federal courts. Then I’d like to address one of the more theoretical points debated between Prof. Dorf and Prof. Turner. (If you already know all about interjurisdictional precedent, feel free to skip ahead!)

First, the Basics

Most folks who follow the legal news understand that the United States doesn’t have a single court system. People often say that there are two systems (state and federal) but that over-simplifies things–the “state system” is not a single system, but actually fifty separate systems. (That becomes important later on.)

Wholly apart from these systems of courts, the United States also has separate systems of laws. This distinction is perhaps not intuitive, but it is at the heart of the current dispute in Alabama. In various circumstances, a federal court located in Seattle, Washington will have to apply federal law, the state laws of Washington, the state laws of some other state, and perhaps even foreign law. The same goes for the King County Superior Court (a state court in Seattle, just a short walk away from the federal court). It applies Washington law most of the time, but it also applies federal law, the laws of other states, etc.

In determining the content of those various laws, courts are bound to follow precedent. Most public conversation surrounding precedent involves the Supreme Court, which is supposed to follow its own prior cases but which can expressly overrule those cases or (more often) reconceptualize prior cases in a way that seems to change course. Supreme Court nominees get asked about precedent all the time, and precedent comes up whenever some lightning-rod case makes it way to the Supreme Court.

But really, the U.S. Supreme Court is the most boring place to think about precedent because it’s the highest court in all the land. It makes the precedent. That precedent most often plays out in the lower courts–courts below the U.S. Supreme Court in the judicial hierarchy, like the federal courts of appeals and the federal district courts (i.e., trial courts). Those courts are bound to follow the precedent from the courts above them. So, for example, the federal district court in Seattle is bound to follow the rulings of (1) the Ninth Circuit Court of Appeals, because that’s the federal court of appeals “above” the Seattle federal court and (2) the U.S. Supreme Court because that’s the big boss of the entire federal system. That’s it; that’s the list.

Not on the list: other federal district judges in Seattle! The Seattle federal court is the U.S. District Court for the Western District of Washington. There are, however, a number of individual judges who serve in that court and hear cases all by themselves–and they do not need to follow the rulings of other judges on the same court. Why? Because one federal district court judge is not “below” any other federal district court judge, even (especially?) one who sits right across the hall. If there’s a dispute between two district court judges then that’s something for the federal court of appeals to work out.

Now, what about state courts? The tricky thing about state courts is that they are not “lower” than the federal courts in the same way that the federal courts of appeals or federal trial courts are “lower.” Instead, the state courts are in an entirely different system. When a decision of the Seattle federal court gets appealed, that appeal goes to the Ninth Circuit, and then up to the U.S. Supreme Court. So in that sense, the Seattle trial court is lower than those courts. But if a decision of the King County Superior Court gets appealed it will never find its away into the federal trial court or even the federal court of appeals. Instead, it goes to the Washington Court of Appeals and then perhaps to the Washington Supreme Court, both in the state court system. If and only if the decision involves a question of federal law, then perhaps the decision can get appealed to the U.S. Supreme Court. But other than that, the state courts are not “lower” than the federal courts. Saying one is “lower” than the other is like saying five feet is lower than fifty degrees. We’re on different scales measuring different things.

But all that is to say that the courts have no easy hierarchy. The question is much easier when we discuss the hierarchy of laws. Under the Supremacy Clause of the U.S. Constitution, federal law is supreme over state law. Therefore any court–state or federal–has to apply federal law over and above any conflicting state law.

Perhaps you can now see how all this got messy in the Alabama case. We’ve got one federal district court judge in Alabama who ruled that Alabama’s marriage amendment is unconstitutional. That decision certainly binds the parties in that case (and folks under the control of those parties). But a different federal judge in that same courthouse would be free to reach a different decision in a subsequent case. And obviously the federal court of appeals could reverse the trial court. Federal trial court rulings get their force not from any precedential value (because they have virtually none), but from the trial court’s power over the individual litigants in the case.

That’s why there are two separate legal questions in the Alabama case, which are often conflated in this discussion: First, are the probate judges parties to the Alabama federal court decision? If they are parties–or if they are agents under the control of one of the parties in the case–then they have to follow the court’s decision. That conclusion flows not from any general power of the federal court over state officials or to interpret the federal constitution, but because the federal court has power over the parties in a case before it.

But let’s say the answer to that first question is “No.” If the probate judges are not parties to the federal court litigation, then we get to the second question: As state officials, are the probate judges bound to follow the federal district court’s interpretation of the U.S. Constitution, or should/can they follow precedent on the question from Alabama state courts?

Note the critical distinction here: The question is not whether the Alabama officials should follow federal law. Under the Supremacy Clause federal law trumps contrary state law, even if that state law is the Alabama Constitution. So the answer is unequivocally yes, the Alabama officials need to follow federal law. But different courts (even federal courts) disagree on what federal law actually is. Just three months ago a federal district judge ruled that same-sex marriage bans are perfectly fine under the U.S. Constitution. Why would an Alabama state official follow one federal district court ruling but not the other district court ruling? Neither ruling has any precedential force in Alabama state courts.

Of course, none of this means that Chief Judge Moore was right to issue his “order” to the probate judges, nor does it meant that the Alabama federal court was wrong on the constitutional question. The thing is, we don’t allow government officials to just decide on their own what the law means in each individual case. They need to follow precedent. And the content of that precedent changes depending on whether you’re in a state court or a federal court, whether you’re in a federal court in Seattle or a federal court in Minneapolis, and whether you’re in a state court in Alabama or a state court in Florida. Unless and until the U.S. Supreme Court decides the question (since it really is the highest court in the land!) there will be systemic disagreements.

A More Complicated Question

To say that the decisions of intermediate federal courts don’t bind state courts does not mean that such decisions couldn’t bind state courts as a matter of state law. In a series of posts, Prof. Dorf discusses a hypothetical:

Suppose that a state high court were to say something like this: We know that lower federal court rulings do not formally bind us but in the interest of comity and prudence, we hereby adopt a rule requiring courts in this state to give binding effect to the federal law rulings of the federal appeals court for the Circuit that encompasses this state.

Could the state supreme court adopt this rule as a matter of state law? Prof. Dorf says no:

Why not? Most fundamentally, because the question of whether state courts are bound by federal appeals court rulings on questions of federal law is itself a question of federal law.

. . . .

Thus, [though] there is some state leeway to decide how to decide questions of federal law[,] I don’t think that leeway extends to state court discretion over what authorities are binding in deciding the substance of federal law. . . . I would say that the state court’s obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitously outsource the job.

(I messed with some paragraph breaks there. Sorry Professor.)

My instinct here is to disagree with Prof. Dorf, which really cuts against my more general instinct to agree always with Prof. Dorf. I am not going to mount any sort of argument against his position, but I do want to elaborate on one point of state-law practice.

The issue here breaks into two questions. I don’t think Prof. Dorf disagrees on this point. The first is a choice-of-law question: Which body of law governs the dispute? The second is a content-of-law question: How does the governing jurisdiction’s law apply to this dispute? The Supremacy Clause certainly controls the first inquiry; state courts are bound to apply federal law. But (as Prof. Dorf notes in the comments), “the Supremacy Clause, standing alone, isn’t sufficient to establish an obligation of a state (or other) court to decide federal issues according to its own best lights rather than to give epistemic (or other) deference to some other authority.”

The insufficiency of the Supremacy Clause made me think of situations where the Supremacy Clause has nothing to say on the question: state court decisions applying the laws of a sister state. As I noted above, our system of government is not divided between “federal” and “state,” but among fifty-one separate sovereigns with their own laws and court systems. That means, for example, that a New York State court might have to apply the law of Washington State.

In the NY/WA case, we have two questions. The first is a choice-of-law question: which state’s law to apply? I’m assuming that the New York court in my hypothetical applied its own choice-of-law rules to determine that, in this case, Washington law governs. The Supremacy Clause has nothing to say about that because there’s no federal law on point. Then the New York court would have to apply its own content-of-law rules to determine what the law of Washington actually is.

That second inquiry needs a little unpacking, but you can imagine different ways in which a court in one state might attempt to determine the application of the laws of a sister state, absent clear precedent from the sister state’s highest court: (1) it could attempt to predict what the sister state’s highest court would do, based on whatever prediction materials it finds most useful, (2) it could presume that the law of the sister state is the same as its own law, absent evidence to the contrary, (3) it could freeze the sister state’s law in time and only apply the holdings of already-decided cases of the highest court (which Prof. Dorf calls the “execution model”), (4) it could look at holdings of intermediate courts in the sister state to adduce the general nature of the law applied in the sister state, or (5) it could simply determine whatever it thinks the proper rule is under its own best judgment, limited by the sister state’s highest court’s previous rulings (i.e., the extension powers of the “prediction” model without the anchor to what other judges might do).

I list all these options to point out, first, that there are options for how to determine the other jurisdiction’s law and, second, that the choice among these options is generally a choice based on the forum state’s law. In other words, when New York is trying to determine Washington’s law, the Washington cases constitute evidence in that inquiry, but New York law determines the weight to give those cases, the method of analysis, etc.

Now imagine a situation like the one Prof. Dorf hypothesizes for a state court (South Carolina) determining the content of federal law absent Supreme Court precedent:

[T]he state court’s obligation in deciding the content of federal law is to make its best efforts to determine the content of federal law, not to gratuitously outsource the job. After all, if the South Carolina courts can gratuitously decide to accept the rulings of the Fourth Circuit as definitive, then they would seem to be able to accept some other body’s determinations, like the Second Circuit’s, or the views expressed on this blog.

(Emphasis added.)

To figure out what prevents the South Carolina court from relying on the Second Circuit or Prof. Dorf’s blog in determining questions of federal law, it’s interesting to think about the situation in which the state court adopted a similar rule for determining the content of a sister state’s law. If federal supremacy can’t do any work in that second scenario, then are state court’s free to adopt Prof. Dorf’s hypothetical rules of interpretation in cases involving sister-state precedent?

My gut tells me they are not, but I’m not exactly sure why. Obviously, such a rule would be silly, and perhaps we can count on state court systems not to adopt silly prudential or common law rules. Perhaps. And perhaps state constitutional provisions on the “judicial power” of state courts might apply some limit–which again would be a state limit on state court decisionmaking. I could also imagine the federal Due Process Clause doing some work. If, for example, a state court adopted a rule that all appeals would be decided by spinning a giant wheel or a game of Plinko, the Constitution would likely forbid that sort of procedure.

But anyway, the point is this: In cases where the state court is faced with a question reached by federal law, the Supremacy Clause clearly requires the state court to apply federal law. That choice-of-law rule is federal and constitutional. But a state’s content-of-law rule generally has nothing to do with the sister state’s law. It’s not clear to me why that general practice differ where the sister sovereign is the federal government.

Perhaps an overly “strict” rule would frustrate federal rights? But such a limitation would not necessarily foreclose the silly “bound by a blog” hypothetical–perhaps the blog is very pro-federal! Moreover, a requirement that the rule properly “advance” (support?) federal interests would seem to foreclose the “execution” method of content determination, which while not a great rule, doesn’t seem like an obviously unconstitutional method of interpreting and applying federal law.

(Note: I know some of this is academic, since the only time a state-court rule of this sort would ever get reviewed in a federal court is in the U.S. Supreme Court, in which case the question would likely just be “What is the federal rule?” not “What is the proper method for the state court to determine the content of the federal rule?” But that’s not necessarily so. Perhaps the Supreme Court would want to avoid the question of the federal rule, perhaps because it’s messy or the Court can’t get a majority, and so the Court would vacate and remand after rejecting the content-determination process, leaving it to the state court to decide the federal issue again in the first instance. But now I’m rambling…. (Note to the note: “Now”???!!))

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3 thoughts on “Alabama, Same-Sex Marriage, and the Variousness of Federal Law

  1. While I am most emphatically not a federal courts or choice of laws expert, isn’t this question somewhat similar to the (non-Supremacy Clause) constitutional choice of law question discussed in, for example, Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981)? If there are circumstances (which the Court admittedly found not to be implicated in Allstate) in which a state court’s choice of law could violate the Due Process or Full Faith and Credit Clauses, wouldn’t the same theories also prohibit a state court from applying an arbitrary methodology to determine sister state law?

    For example, in your hypothetical, what is the difference between New York concluding as a matter of conflicts-of-laws that its law controls rather than Washington’s (which has Due Process/FFC implications) and concluding that it will treat Washington’s law as presumptively equivalent to New York law?

    Separately, it seems that the federal and state choice-of-law questions aren’t entirely analogous here because, as a theoretical and practical matter, everyone agrees that there are (at least) 51 distinct “state law” systems with their own laws. That’s not the case for the federal courts, which are theoretically one system of law, even if there are (temporarily) unresolved conflicts among the courts of appeals. See In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987) (R.B. Ginsburg, J.) (holding that an MDL transferee court is bound by the rulings of its court of appeals as to federal law, not those of the transferor circuit).

    • Thanks Russell. Two responses: First, I think Allstate is not quite on point, because that case addresses the choice-of-law question: Does Wisconsin law govern the dispute? Can Minnesota law govern the dispute? I agree that the DPC has something to say about that, and in the “state vs. state” situation (like Allstate) the FFC Clause plays a role in the choice of substantive law—similar to the role the Supremacy Clause plays in the “state vs. federal” situation. But I’m asking something different: Let’s say the Minnesota court in Allstate determined that Wisconsin law governed the dispute, but that no Wisconsin statute or Supreme Court decision provided a critical liability rule. What should the Minnesota court do then? What *can* the Minnesota court do then? I think you’re right that if the FFC Clause were to require the application of Wisconsin law, then Minnesota would have to apply the law of Wisconsin. The question is how much leeway Minnesota has in determining what the law of Wisconsin actually is.

      But second, I think this discussion illustrates the difficulty in separating the choice-of-law and content-of-law inquiries, which Prof. Dorf gets at in the comments here: http://www.dorfonlaw.org/2015/02/is-alabama-chief-justice-roy-moore-like.html?showComment=1423703064995#c5237357597531698866

      I think the Supremacy Clause (or the FFC Clause) does impose some limit on the forum jurisdiction’s ability to determine the content of the law, at least to the extent that they can’t claim to “determine” the content of the law in a manner that actually ignores binding authority from the governing jurisdiction. (So, for example, Minnesota could not say “Our choice-of-law rules and the FFC Clause require us to apply Wisconsin law. Now, we will determine the content of Wisconsin law by ignoring all Wisconsin statutes and Supreme Court opinions.”) I think that’s just some residual work from the choice-of-law question. But aside from that, if we take as given that the governing law is *actually* undetermined on a given point, how much leeway does the forum state have in determining what the content of the legal rule will be in a given case? I don’t think Allstate answers that question.

  2. Pingback: The Variousness of Federal Law, Part II | Ziff Blog

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