Responding to Idaho “Hail Mary” Pass, Kennedy Temporarily Stays Marriage Ruling

Idaho Governor Butch Otter.

Idaho Governor Butch Otter.

Supreme Court Justice Anthony Kennedy has put a temporary stay on the Ninth Circuit’s October 7 ruling that struck down same-sex marriage bans in Idaho and Nevada.

Kennedy, in an October 8 order that provided no explanation, was responding to a motion from Idaho Governor Butch Otter that asserted the issue at stake there is narrower than in the cases the Supreme Court declined to intervene in on October 6. The high court that day let stand appeals court rulings in marriage cases in Virginia, Indiana, Wisconsin, Oklahoma, and Utah, opening up the prospects of marriage equality in 11 states in the Fourth, Seventh, and 10th judicial circuits.

Otter's request to the high court argued that unless a stay is granted, the state faces the prospect of “unwinding” marriages by same-sex couples should the state prevail on appeal.

Kennedy gave the plaintiff couples until the end of the day on October 9 to respond.

Despite the fact that Nevada officials have indicated they are prepared to issue marriage licenses to same-sex couples, Kennedy’s stay also applies to that state. [Editor's note: Several hours later, the high court “revised” the order to exempt Nevada from the stay.]

New York Law School Professor Arthur S. Leonard will update and expand on this story today.