On the day that same-sex marriages were set to begin in Alabama as a result of federal court decisions against the state’s prohibition on same-sex marriage, the U.S. Supreme Court announced it wouldn’t intercede to the halt the weddings as it decides the issue on a nationwide basis.
In a three-page order, the court announces it has denied a request from Alabama Attorney General Luther Strange to stay the weddings as the litigation proceeds on appeal. The order says the matter was referred to the entire court, but the filing was submitted to U.S. Associate Justice Clarence Thomas, who was joined by Scalia in a lengthy dissent.
“[T]he Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor,” Thomas writes. “This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.”
In much of his dissent, Thomas laments what he says is a newfound “increasingly cavalier attitude toward the States” expressed by the Supreme Court.
“Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds,” Thomas writes. “It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.”
The stay denial was expected because the Supreme Court had also declined to hold same-sex marriages in Florida, another state in the Eleventh Circuit like Alabama, and in other states like Kansas, South Carolina, Alaska and Idaho. Scalia and Thomas have voiced objections to the stay denials in earlier cases, although this is the first time either has written a dissent explaining their views.
Thomas says the decision from the court to reject the stay may have made sense after October when the Supreme Court had declined to hear cases seeking marriage equality in give states, but now that the court has agreed to take up the issue, the situation has changed.
“I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions,” Thomas writes. “That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.”
Alabama Gov. Robert Bentley, a Republican, had filed a friend-of-the-court brief before the Supreme Court in support of Strange’s petition for an extended stay. In a last-minute effort to stop same-sex marriages in Alabama, Alabama Supreme Court Chief Justice Roy Moore issued an order barring probate judges from issuing marriage licenses to same-sex marriage, although LGBT advocates say his word isn’t binding on this matter.
But attorneys for plaintiff couples urged justices to reject a further hold on same-sex marriages. The National Center for Lesbian Rights, which is representing one of the plaintiff couples, argued against an extended hold on the basis that, among other things, the court has denied stays in similar cases.
“Applicant points to nothing that would justify issuance of a stay in this case when recent orders of this Court have had the effect of dissolving all stays in every other case raising the same constitutional issues,” the brief says. “There is no relevant difference between this case and those earlier cases that would warrant a different outcome here.”
Last month, U.S. District Judge Callie V. S. Granade issued preliminary injunctions enjoining Alabama from enforcing its ban on same-sex marriage in two separate cases, but issued a temporary stay on her rulings until Monday. Strange requested an extended stay from the Supreme Court after the district court and the U.S Eleventh Circuit Court of Appeals denied a hold for the duration of appeals.
The denial from the Supreme Court is notable, along with its stay denial in the Florida case, because no appellate court has yet to rule on the merits of the Alabama lawsuit. In denials for other states, a federal appeals court has ruled against bans on same-sex marriage, establishing legal precedent in favor of of marriage equality throughout the judicial circuit.
The order is a sign the Supreme Court is comfortable with letting same-sex marriages take place as they review a decision from the U.S. Sixth Circuit Court of Appeals upholding bans on gay nuptials, and as Thomas suggests in his dissent, observers may take away the order is an indication justices are ready to make a nationwide decision in favor of marriage equality.
Sarah Warbelow, legal director for the Human Rights Campaign, said the order from the Supreme Court all but sealed the deal on the upcoming ruling.
“By refusing to halt marriage licenses in Alabama, the Supreme Court has telegraphed that there is virtually zero risk that they will issue an anti-equality ruling this summer,” Warbelow said. “Instead, the odds of a ruling bringing marriage equality to all 50 states have increased significantly.