In another surprising move from the U.S. Supreme Court this week, Justice Anthony Kennedy granted an emergency request Wednesday from Idaho officials to delay a federal appeals court ruling that struck down same-sex marriage bans in that state and in Nevada. Later on Wednesday, Kennedy lifted that hold only as it applied to Nevada, allowing same-sex nuptials to go forward there. Nevada officials declined to defend their state's ban before the 9th Circuit, and did not seek a stay from the Supreme Court.
The action comes two days after the high court denied seven requests (known as petitions for writ of certiorari) to hear challenges against same-sex marriages bans in Indiana, Oklahoma, Utah, Virginia, and Wisconsin. That move immediately legalized marriage equality in those five states, which are part of the 4th, 7th, and 10th circuits. It also doomed bans in six others — Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming — which are bound to the same appellate rulings that were put on hold pending Supreme Court review. Since the Supreme Court declined to review, those holds were lifted and marriage equality became law of the land throughout those three circuits.
Already, Colorado Attorney General John Suthers has directed county clerks to begin issuing marriage licenses to same-sex couples. And though South Carolina officials have vowed to uphold the state's same-sex marriage ban, the Charleston County Probate Court announced on Wednesday it would begin issuing marriage licenses to gay and lesbian couples as well. In North Carolina, a federal judge on Wednesday lifted his hold on legal proceedings in two challenges to the state's same-sex marriage ban, signaling his intention to strike it down. Gay and lesbian couples could be marrying in that state as early as Wednesday afternoon or early Thursday, a spokesman for the ACLU of North Carolina told WNCN. And as evening fell in Kansas Wednesday, a state judge in Johnson County ordered the clerk's office to begin issuing marriage licenses to same-sex couples there as well.
On Tuesday, one day after the Supreme Court cleared to the way for marriage equality's expansion to 30 states plus the District of Columbia, a three-judge panel from the 9th Circuit Court of Appeals declared same-sex marriage bans in Idaho and Nevada unconstitutional, and put its ruling into immediate effect. Same-sex couples were due to begin marrying in those states on Wednesday morning.
But minutes before the starting gun, Kennedy issued a temporary hold on the 9th Circuit's decision, blocking marriage equality from going forward in those two states (as well as in three others with same-sex marriage bans that make up the circuit). Believing the stay applied to them as well, Nevada officials instructed county clerks not to issue marriage licenses to same-sex couples on Wednesday. Kennedy later cleared up the confusion.
Idaho officials are planning to request en banc review from the full 9th Circuit, and later, from the U.S Supreme Court. They argued in their application for a stay that Idaho's case is narrower in scope than the other same-sex marriage cases tossed aside by the justices on Monday.
The hold could be a short one, as lawyers representing the plaintiffs were told to file a response by 5 p.m. Thursday. But delaying same-sex nuptials for any period of time still comes as a surprise from this Supreme Court, considering the justices just cleared the way for marriage equality to take over more than half the nation. Additionally, in the past, Supreme Court delays on same-sex nuptials have been granted by the full court, not the single justice who handles emergency filings from the region.
With the 9th Circuit’s ruling, marriage equality remains undefeated at the appellate level. That means that there’s still no “circuit split” for the Supreme Court to resolve, so it’s unlikely the justices would grant review to a marriage case out of the 9th Circuit should state officials appeal.