According to the two-page order, same-sex weddings are stayed until Friday at 12 pm Pacific Time (3 pm Eastern Time) to give state officials the opportunity to obtain an additional stay from the Supreme Court. But if the Supreme Court declines to halt the weddings, the Ninth Circuit stay will dissolve by that deadline.
The three-judge panel on the Ninth Circuit that enacted the stay consists of U.S. Circuit Judge Diarmuid O’Scannlain, a Reagan appointee; U.S. Circuit Judge Marsha Berzon, a Clinton appointee; and U.S. Circuit Judge Jay Bybee, an appointee of George W. Bush.
In the order, O’Scannlain concurs in part and dissents in part, saying he would have granted a stay for the duration of the case pending appeal.
O’Scannlain is known for his fiery dissent in the Ninth Circuit ruling against California’s Proposition 8 as well as his opposition to a ruling in SmithKline v. Abbott, a gay juror case that established heightened scrutiny as precedent for laws related to sexual orientation within the jurisdiction.
Berzon, however, was part of the same three-judge panel on the Ninth Circuit that found Idaho and Nevada’s bans on same-sex marriage were unconstitutional. She also joined in the decision in the SmithKline case.
Alaska Gov. Sean Parnell and Alaska Attorney General Michael Geraghty sought an emergency stay on same-sex marriages after U.S. District Judge U.S. District Judge Timothy Burgess, who’s struck the state’s ban on same-sex marriage, refused to grant a stay on his ruling. After that denial, state officials took up the matter with the Ninth Circuit, which has jurisdiction over Alaska.
It’s hard to see how state officials will succeed in obtaining a stay from the Supreme Court given justices’ refusal to extend a similar stay on a Ninth Circuit decision in favor of same-sex marriage in Idaho.
Adam Romero, federal legal director for the Williams Institute at the University of California, Los Angeles, said the stay has the effect of creating “tiny window” for the Supreme Court to consider a stay before same-sex marriages continue in Alaska.
“Given the Supreme Court’s recent decisions on similar requests, I expect the Court to deny a stay to Alaska, which will result in same-sex marriage coming to Alaska while the states exhausts its appeals,” Romero said. “On the merits, I see no scenario, in the present circumstances, in which the Ninth Circuit does not strike down Alaska’s ban, or Arizona’s or Montana’s bans for that matter.”