Justice Kennedy Halts Marriages In Idaho (And Maybe Nevada)

Jim Burroway

October 8th, 2014

In a very surprising move in a week of surprises, Justice Anthony Kennedy stayed (PDF: 40KB/1 page) the Ninth Circuit Court of Appeals’ mandate requiring Idaho to begin granting marriage licenses to same-sex couples. The stay is “pending further order of the undersigned or of the Court” and orders lawyers for same-sex couples to file a response by 5:00 Thursday.

There are a couple of things to think about here. Narrowly, there’s some speculation about whether there was a procedural error when the Ninth combined the Idaho and Nevada cases when it issued its mandate requiring the two states to begin issuing marriage licenses. The fact that Kennedy’s order referenced both the Nevada and Idaho cases may be a possible hint. But more broadly, while the Supreme Court on Monday decided to turn away cases in five states, it doesn’t mean that a sixth state doesn’t still have a right to appeal. Who knows? Maybe Idaho just might have those compelling arguments that the other cases somehow lacked. I doubt it, but it’s still their legal right to give it a shot.

While Kennedy acted on a request from Idaho, it’s unclear whether his order affects marriages in Nevada as well. Nevada already announced that they would not be seeking an appeal.


October 8th, 2014

Las Vegas Sun is reporting that the stay affects Nevada, too:


“The order also applies to Nevada, where marriage licenses to same-sex couples were going to start to be issued later Wednesday.”


October 8th, 2014

If the mandate combines both states and is stayed in toto, then the stay covers Nevada.

I am not that puzzled by this. First, this is not a stay pending appeal. It is a stay pending a ruling on a motion to stay. In other words, Kennedy needed to stay the mandate while he considers Idaho’s motion to keep the stay in place until the en banc motion is heard.

Second, if Kennedy or the full court decides to keep the stay in place during the pendency of Idaho’s en banc motion, that too would not be so shocking. It would be consistent with SCOTUS’s approach to date: Stay the rulings until the final appeal is complete. The denial of cert on Monday doesn’t change this. That denial has no substantive legal effect, even if it has huge practical effects. So since, legally, nothing has changed, it would make no sense for SCOTUS to change its approach to these stay requests.

enough already

October 8th, 2014

I suspect we’ll know a lot more about how the Supremes really feel about us queers when we see how this particular one is resolved.
Butch Otter has been one of the nastiest of the Christians (topping even Matt Mead of Wyoming, who’s the absolute bottom when it comes to Republican governors).
If the Supremes let him pull an extended delay, then we know we’re facing a real problem.
If, however, this is just dotting ‘i’s and crossing ‘t’s, then it will be done quickly.

Mark F.

October 8th, 2014

The Court could have resolved this issue by taking on any of the cases they rejected yesterday. However, they are big on following proper procedure.


October 8th, 2014

The attorneys from Nevada are petitioning to be exempt from the stay since they were a part of a seperate case and state officials have made it clear they will not appeal and that marriage equality is the law of the land.

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