Over the Threshold of Constitutional Adjudicative Retroactivity

Abstract

After a period of experimentation, the Supreme Court decreed that its constitutional decisions overruling prior precedents or applying new legal rules to the parties govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a different legal framework. But this understanding of the temporal boundaries of legal change is potentially unsettling in some circumstances after the Supreme Court’s holding in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples are invalid. The application of Obergefell to retroactively backdate same-sex relationships into ceremonial or common law marriages in certain contexts has the potential to disrupt settled understandings and expectations, such as in property transactions with third parties or in divorce actions predicated on the parties’ cohabitation beginning and ending before legal recognition was afforded to their union.Building on the insights of prior scholars, this Article constructs a more comprehensive typology of the institutional, remedial, and procedural doctrines that serve to protect reliance, fairness, and efficiency interests in a regime of retroactive application of judicial decisions. Strategic employment of these doctrines can safeguard settled reliance interests while optimizing utilitarian benefits during a period of legal transition. The Article proceeds to evaluate potential retro-activity issues facing same-sex marriages in light of the proposals, demonstrating that remedial and procedural doctrines such as judgment scope, declaratory breadth, limitations periods, and judgment finality, in conjunction with the Court’s prior institutional incrementalism on same-sex marriage, can secure settled expectations while fulfilling the promise of marriage equality.