Ninth Circuit adds Nevada and Idaho before the dust even settled

Timothy Kincaid

October 7th, 2014

marriage 2014

As a consequence of yesterday’s denial of certiorari from the Supreme Court on marriage equality cases, we’ve all predicted that West Virginia, North Carolina, South Carolina, Wyoming, and Kansas would be next. But before judges could even consider, much less issue, rulings on the unconstitutionality of anti-gay marriage bans in those states, the Ninth Circuit has ruled on two more.

Idaho and Nevada have now been added to the marriage equality total.

This is not exactly a shock. After observing the questions presented at the appeals hearing, all pundits agreed that the conclusion was foregone.

Idaho’s ruling overturning their ban – which was fiercely opposed by Gov. Butch Otter (tee-hee) – was upheld. Nevada’s ruling allowing the ban – which was not given support by the state – was reversed.

It is highly unlikely that a stay will be issued. Same sex couples in those states (and casino chapels and Elvis impersonators) can now rejoice.

So now added to the ‘just until the papers are filed’ category are:


(and probably Guam and the Northern Mariana Islands)

enough already

October 7th, 2014

Interestingly, no stay.
Or did I miss something? Montana will probably be reasonable, Wyoming’s governor is saying the 10th has no jurisdiction because:religious belief?

Can Idaho still try an end run?


October 7th, 2014

Will Idaho try to appeal? If so, will SCOTUS grant a stay? We might start having questions answered pretty quickly!


October 7th, 2014

Doesn’t seem like there’s any reason for a stay; if the court didn’t take those other cases, why would anyone believe it would take these nearly-identical ones?

Timothy Kincaid

October 7th, 2014

I don’t think there will be a stay… however, it is possible that this case could be picked up by the high court. It was predicated on very different assumptions: that laws targeting gay people are subject to heightened scrutiny. That could possibly be something that SCOTUS wants to debate or clarify.


October 7th, 2014

Timothy, didn’t the 4th also call for heightened scrutiny?

Also, how many Justices are needed to issue as stay from SCOTUS, should Idaho request one? Mostly, I am wondering if a vindictive conservative Justice could stay Idaho, only to deny cert several months later.


October 7th, 2014

So over half the population now has marriage equality?

Timothy Kincaid

October 7th, 2014


I could be mistaken, but I think the Ninth is the only Circuit Court to say that gay people, as a class, are entitled to heightened scrutiny. They did it on a case involving voting rights and applied it today.

As for stay (I’m going from my memory here) I believe it is either the Justice assigned to the area or (if he declines) then a majority. I don’t recall who is assigned the Ninth, but I think it’s either Roberts or Kennedy.

Richard Rush

October 7th, 2014

Nathaniel, my understanding is this: Each Supreme Court justice is assigned to oversee one or more Circuit Courts to handle various issues, including stays. And that one justice may grant a stay. However, if that justice chooses to refer the stay request to the full court for consideration, then five votes are required for a stay.

Timothy Kincaid

October 7th, 2014


Not counting Nevada and Idaho – which have yet to clarify when – I believe that as of today 54% of US residents live in a state which will issue a marriage license to a same sex couple.

With Nevada and Idaho, it goes to 55%

Timothy Kincaid

October 7th, 2014

Thanks, Richard. Yes, the Ninth is Kennedy.

Ben M

October 7th, 2014

Nathaniel – Justice Kennedy oversees the 9th Circuit. I believe he could issue the stay himself, or refer it to whole the Court as a whole.

Jim Burroway

October 7th, 2014

If he does issue a stay, then that could only be in order to force an appeal back to the Supreme Court. In which case, we would at least be reasonably certain that Kennedy voted for cert on at least one of the other cases. ;-)

I really doubt that Kennedy would issue a stay and force it back to his colleagues.

Mark F.

October 7th, 2014

I wouldn’t mind having a Butch Otter!


October 7th, 2014

Thanks, everybody! I’m mostly curious, since I live in NC. The Republican leadership of our General Assembly has vowed to fight for our anti-marriage amendment as long as they can (meanwhile our AG has said such a battle is pointless, and is telling county clerks to be ready for an influx of marriage applicants). But, the federal judge overseeing our cases is taking his sweet time, so many of us are on edge. Marriage seems inevitable, only a matter of when. We are all hoping it will only be a few days or weeks, but it might be months before our leadership actually exhaust their options. Unfortunately, Roberts oversees the 4th Circuit. I agree that it would be surprising for Kennedy to issue a stay for cases from the 9th, but who knows with Roberts.


October 7th, 2014

Cert requires at least four votes. Either wing had enough votes to grant cert to take on the issue ideologically but they chose not to do so. The reason for the left denying cert is, speculatively, denial is enough to invalidate Baker which knocks the foundations out from under the contrary justifications raised to date: the least possible involvement to assure victory without having to take an official stand on the matter. Equally speculative, the right’s justification may simply be they could not be assured they would prevail and so taking the case would damage themselves. Or it could simply be a procedural decision: no conflict, no cert.

Issuing a stay would start the whole process over again, which, I suspect, no one wants.


October 8th, 2014

…and yet, look what happened today.

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