Over the Threshold of Constitutional Adjudicative Retroactivity

61 Pages Posted: 26 May 2016 Last revised: 3 Sep 2017

Date Written: May 24, 2016


This working paper evaluates adjudicative retroactivity issues confronting same-sex marriages. The Supreme Court's 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 disruptive 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. Applying Obergefell to retroactively backdate same-sex relationships into ceremonial or common law marriages in certain contexts has the potential to contravene settled understandings and expectations. After constructing a 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, the paper demonstrates that strategic employment of such doctrines can secure legitimate settled expectations while fulfilling the promise of marriage equality.

Keywords: adjudicative retroactivity, Obergefell, marital equality, common law same-sex marriage, constitutional remedies, precedent, legal change

JEL Classification: K10, K40

Suggested Citation

Rhodes, Charles W. (Rocky), Over the Threshold of Constitutional Adjudicative Retroactivity (May 24, 2016). Available at SSRN: https://ssrn.com/abstract=2783954 or http://dx.doi.org/10.2139/ssrn.2783954

Charles W. (Rocky) Rhodes (Contact Author)

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States
713-646-2918 (Phone)

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