Article Title

Loving Retroactivity

Document Type



Pending actions across the nation highlight the ongoing struggle between adjudicative retroactivity and marital equality. The Supreme Court's constitutional decisions overruling prior precedents or applying new legal rules to the parties retroactively govern all pending and future adjudicative proceedings on direct review, even if the underlying operative events occurred under a prior legal framework. But this understanding of the temporal boundaries of legal change is being challenged after the Supreme Court's holding in Obergefell v. Hodges that laws excluding same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples are invalid. The retroactive application of Obergefell to backdate same-sex relationships into ceremonial or common-law marriages in certain contexts may 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.

This Article constructs a comprehensive, layered account of the institutional, remedial, and procedural doctrines that protect reliance, fairness, and efficiency interests in a regime of retroactive application of judicial decisions. It explores for the first time the intersection of adjudicative retroactivity with three separate judicial institutional norms-stare decisis, incrementalism, and signaling-and identifies underappreciated remedial principles that mitigate transitional reliance costs. The Article appraises the retroactivity issues currently facing same-sex marriages to test the proposed framework, relying on a heretofore unrecognized distinction between the retroactive application of the right and the recognition of ceremonial and common-law marriages. This appraisal demonstrates that remedial and procedural doctrines such as judgment scope, declaratory breadth, limitations periods, and judgment finality, in conjunction with the Court's prior incrementalism on same-sex marriage, can secure settled expectations without sacrificing the promise of marriage equality.