A Tale of Two Injunctions

January 29, 2014

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonOver the last several weeks, the U.S. Supreme Court has made two decisions that might seem somewhat at odds with one another. I haven’t seen anyone else pointing this out, so I thought I would.

First, in Utah, three couples challenged the state’s laws against same-sex marriage. The case is called Kitchen v. Herbert, and it was big news when, in December, the Utah district court found the state’s laws violated these individuals’ rights to equal protection under the Fourteenth Amendment. After the court’s ruling, hundreds of couples went to get married. But the State of Utah quickly sought an injunction to prevent those marriages from happening—at least until an appeal could work its way up the ladder. And the U.S. Supreme Court granted that injunction.

Meanwhile, in Colorado, a nun organization challenged the so-called “contraceptive mandate”—a provision in the Affordable Care Act that requires employers to provide health insurance plans that include coverage for contraception and other pregnancy-related services. The nuns, like other religious groups, can fill out a form that would exempt them from this requirement—meaning they would not have to provide the insurance coverage that they do not want to provide, if they just fill out the form. But even the requirement to fill out the form, according to the nuns, is too much. They claim the form requirement is itself a violation of their religious rights under the First Amendment.

In this case, called Little Sisters of the Poor v. Sebelius, the district court has not yet issued any decision about whether the nuns’ rights are being violated. But on the eve of the deadline for the form, the nuns asked the U.S. Supreme Court to issue an injunction that would prevent the federal government from requiring that form. And just a few days ago the Supreme Court granted that injunction.

So we have a tale of two injunctions. But do you see the contradiction?

On the one hand, we have an express ruling by a district court that Utah’s marriage laws violate the Fourteenth Amendment, but the Supreme Court has issued an injunction that allows the State of Utah to continue to enforce those laws. So literally hundreds of same-sex couples in Utah will continue to be denied the right to marry for months and months—perhaps even for a year or more—until we finally get a ruling from the Supreme Court that individuals cannot be denied the right to marry the person they want to marry. (Even Justice Scalia acknowledges that ruling is coming, sooner or later.)

And on the other hand, we have an open question about whether the requirement to fill out a simple form violates the First Amendment, but the Supreme Court has issued an injunction that prohibits the federal government from enforcing that requirement. So, for now, the Colorado nuns don’t have to fill out that form—even though it seems likely that some version of the form requirement will be deemed constitutionally acceptable, because it isn’t very burdensome and it actually enables the nuns to exercise their religious freedom by opting out of the “mandate.” (Indeed, the Supreme Court effectively required the nuns to do perform the same task, without requiring them to fill out the form, by telling them to write a letter instead.)

To put it more succinctly, the Supreme Court is allowing the State of Utah to continue enforcing laws that have been (and probably will be) ruled unconstitutional, but is disallowing the federal government from requiring a form that has not been (and probably won’t be) ruled unconstitutional. Seems like a pretty stark contradiction, no?

I realize, of course, that there are good rationales in each case that explain the Court’s decision, and perhaps dissolve the apparent contradiction. I just thought the appearance of contradiction was worth noting.