Following a stay request made by Idaho state officials, U.S. Associate Justice Anthony Kennedy issued a one-page order Wednesday morning halting same-sex marriage from taking place “pending further order.”
Kennedy, who’s responsible for handling stay requests in the Ninth Circuit, ordered a response to the stay application due Thursday by 5 pm.
Idaho Gov. Butch Otter (R) made a last-minute stay request with the Supreme Court the morning after a three-judge panel on Ninth Circuit issued its decision striking down marriage bans in Nevada and Idaho and its mandate to make that ruling take effect.
In the stay request, attorneys for Otter say a stay should be placed on Idaho same-sex marriage because the state intends to seek review of the decision before the full Ninth Circuit, and if that fails, the Supreme Court.
“Strongly tipping the balance in favor of a stay is the public’s overwhelming interest in maintaining the status quo pending a regular and orderly review of Respondents’ claims by the en banc Court of Appeals and this Court,” the brief says. “A stay will serve the public interest by preserving this Court’s ability to address matters of vital national importance before irreparable injury is inflicted on the State of Idaho and its citizens.”
It’s hard to see how Idaho would be successful before either the full Ninth Circuit or the Supreme Court given justices recent decision to refuse to consider five cases in which other circuit courts ruled in favor of marriage equality.
Doug NeJaime, a law professor at the University of California, Irvine, noted that Kennedy’s stay is temporary when asked why he would want to halt gay nuptials in Idaho after the court dispensed with other pending marriage cases.
“He has not issued a permanent stay, and he requested briefing,” NeJaime said. “So it seems at this point he is simply giving those defending the Idaho ban an opportunity to explain why the order should be stayed and why their case is different, what they say ‘narrower,’ than the cases for which the Court just denied cert.”
Otter had also made an emergency request to the Ninth Circuit lift its mandate and issue a stay on its ruling, but the appeals court had yet to act on that by Wednesday morning.
Chris Stoll, senior attorney for the National Center for Lesbian Rights, said his organization — which filed the Idaho lawsuit — intends to make the case before the Supreme Court on why same-sex marriages should take place in the state immediately.
“The temporary stay is deeply disappointing to our clients, who were in the process of applying for marriage licenses when it was issued,” Stoll said. “We will file a response in the Supreme Court promptly, making the case for why marriages in Idaho should take place without further delay.”
It wasn’t immediately clear whether the stay decision also affected same-sex marriage in Nevada, where the prohibitions on gay nuptials was also struck down as a result of the Ninth Circuit ruling. Kennedy enumerates in his stay decision case No. 12-17668, which is the Nevada case, in addition to case Nos. 14-35420 & 14-35421, which are the consolidated Idaho cases.
But hours after the initial decision, Kennedy issued another order vacating the portion of the stay that applied to Nevada while keeping the stay on Idaho same-sex marriages.
“IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated,” Kennedy writes. “The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.”
Jon Davidson, legal director for Lambda Legal, said he expects Nevada officials will soon start allowing same-sex couples to marry in that state.
“Idaho officials filed a motion yesterday with the Ninth Circuit to recall the mandate and stay the Ninth Circuit’s decision, which the Intervenor (the Coalition for the Protection of Marriage) joined this morning,” Davidson said. “Given that the Supreme Court has allowed the mandate to remain in place as to Nevada, however, and given that the intervenor is not entitled to relief given that the Nevada government officials are no longer challenging the Ninth Circuit’s ruling, we expect that the Ninth Circuit will promptly deny that motion, at least as to Nevada.”
UPDATE: The Ninth Circuit announced late Wednesday it has withdraw the mandate for its decision against Idaho’s ban on same-sex marriage and is soliciting responses for whether it should do the same for Nevada’s.
As a result, Clark County Nevada, where Las Vegas is located, has said it no longer plans to distribute marriage licenses to same-sex couples for the time being.
— Clark County Nevada (@ClarkCountyNV) October 8, 2014