Email, Richard Fallon, Ralph S. Tyler, Jr. professor of constitutional law, Harvard Law School, July 23, 2015

10:58 a.m.

In very technical terms, Senator Cruz is correct that people who are not parties to a suit are not bound by a judicial order in that suit.  People who are bound would immediately be in contempt of court if they failed to comply.  But under the doctrine of precedent, any official who failed to issue gay marriage licenses would be suable for failure to do so, and any court in which the suit was filed would be obliged to follow the Supreme Court’s gay marriage ruling.  In the long run, non-compliance thus amounts at most to a delaying tactic.  And there are lots of complicated questions about whether officials should regard themselves as obliged to do what they know a court would order them to do if they were sued—even if they are not technically bound by the Supreme Court’s ruling.  But on Senator Cruz’s technical point, he is probably correct, if you understand it as being only a very limited, technical point about a delaying tactic.

Sincerely,

Richard Fallon