Hasen has many criticisms of the per curiam opinion — including its assessment of the evidence challenging the law, and its reading of a Supreme Court case called Purcell v. Gonzales. It isn’t self-evident to me who is right about those things. (You can read his post to decide for yourself.)
But there is something else that troubles me about the per curiam opinion. The Supreme Court has said that the two “most critical” factors in deciding whether to grant a stay are the likelihood of success on the merits and whether the applicant will be irreparably injured absent a stay. The per curiam opinion discusses the state’s likelihood of success on the merits. It doesn’t discuss irreparable injury. So far as I can tell neither word (“irreparable” or “injury”) appears in the opinion at all.
Instead, the opinion proceeds by analogy, noting that the Supreme Court has recently granted some stays to the state in the various pending same-sex marriage cases. Since, we assume, those stays satisfied the irreparable injury standard, maybe these stays do too. That might be fine, but unfortunately the Supreme Court did not explain why it granted those stays. So we really don’t know whether they support the Seventh Circuit ruling or not.
For instance, I see at least three possible ways the Supreme Court could have dealt with the irreparable injury rule in granting the marriage stays:
1, the Supreme Court didn’t actually apply the irreparable injury rule.
2, the Court was concerned about the confusion of having provisionally-recognized marriages that might or might not remain valid after its ruling. (This theory is offered by the Seventh Circuit dissenters).
3, the Court relied on the proposition that “Any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” I’ve seen versions of that proposition in several in-chambers opinions, such as this one by Chief Justice Roberts but I’m not sure if the whole Court has ever formally endorsed it.
The second possibility would support the dissenter’s view of the case; the third possibility would support the panel’s view of the case. I don’t know what we’d make of the first possibility. But in any event, the whole thing strikes me as an obvious question without an obvious answer, which makes it troubling that the panel doesn’t address it, even to mention the third possibility.