In a climactic end to an historic week, the US Supreme Court on October 10 declined Idaho’s petition for a stay pending that state’s appeal of a Ninth Circuit Court of Appeals ruling that struck down its ban on same-sex marriage.
Governor Butch Otter, a Republican, sought the stay in order to prevent marriages from beginning as Idaho prepared to challenge the October 7 Ninth Circuit decision. In that ruling, a three-judge panel unanimously struck down bans on same-sex marriage in Nevada as well as Idaho.
Given that the high court had declined just one day earlier to intervene in cases involving five states and three federal appellate circuits where marriage equality rulings were made, nobody expected the Supreme Court to step into the Ninth Circuit case either.
On October 8, however, Justice Anthony Kennedy placed a temporary stay on marriage in Idaho to give the full court the opportunity to consider whether the state deserved a longer stay while it appealed the case.
The same-sex plaintiff couples were told to respond to the State of Idaho’s arguments by the end of the day on October 9. A day later, without explanation –– as was the case with Kennedy’s temporary stay –– the high court declined to issue a longer stay.
The result is that marriages can now begin in Idaho as they already had in Nevada, where state officials declined to appeal the Ninth Circuit order.
Despite the fact that Kennedy’s temporary stay came as a surprise, the high court’s refusal to grant a longer stay is likely a relief to LGBT legal advocates. Idaho argued that the Ninth Circuit’s reasoning –– which applied heightened scrutiny to the plaintiffs’ equal protection claims, imposing a high hurdle on the state in hoping to prevail –– was different from the standards that the Supreme Court let stand in the other appellate rulings. As Gay City News’ Arthur S. Leonard noted earlier this week, that hook could potentially have led the court to treat the Ninth Circuit differently than it had the other three appellate circuits.
The appeals court’s ruling is also binding on the other three states in the Ninth Circuit where marriage equality is not already the law –– Alaska, Arizona, and Montana. District courts there will soon face motions for summary judgment from plaintiffs in cases already in the works, which circuit precedent will require them to grant. (Editor's note: On October 12 –– a Sunday –– a federal district court in Alaska struck down that state's same-sex marriage ban in line with the Ninth Circuit ruling.)
That process is already playing out in Fourth, Seventh, and 10th Circuits, where the Supreme Court declined to consider appeals in cases involving Virginia, Indiana, Wisconsin, Utah, and Oklahoma. Same-sex marriages have begun in those states, and have started as well in some of the six other states affected by the circuit precedents the high court let stand.
Colorado, which like Utah and Oklahoma is in the 10th Circuit, immediately complied with an earlier federal ruling, which had been stayed, requiring marriage equality there. By week’s end, West Virginia officials began issuing marriage licenses and a district court in North Carolina on October 10 ordered officials there to end its bar on same-sex marriage. Before the day was out, gay and lesbian couples throughout North Carolina had married.
Other states affected by the Supreme Court’s action –– including South Carolina, Wyoming, and Kansas –– have vowed to keep up their battle, but the rhetoric of officials in those three is likely geared more toward pleasing their political base than in advancing any realistic goals. Federal courts in the Fourth, Ninth, and Tenth Circuits are now required to make marriage equality a reality in all their jurisdictions. (Gay marriage was already available in Illinois, the only other state in the Seventh Circuit besides Indiana and Wisconsin.)
When all the judicial maneuvering regarding these circuits is complete, marriage equality will be the law in 35 states plus the District of Columbia –– which represent 64 percent of the US population.
Also this week, the State of Missouri announced it would not appeal a state judge’s ruling that it recognize valid marriages from other jurisdictions. Earlier this year, a state judge in Arkansas struck down the gay marriage ban there on federal constitutional grounds, in a ruling that was stayed. Both states are in the Eighth Circuit, where Iowa and Minnesota already allow gay and lesbian couples to marry, but where no federal court rulings have come down. The Eighth also includes Nebraska and North and South Dakota.
The Sixth Circuit is expected to rule shortly on appeals of marriage equality victories in Ohio, Michigan, Tennessee, and Kentucky. Victories in Texas and Florida and a federal court defeat in Louisiana have not yet gone before appeals courts.