October 8th, 2014
My morning would be going smoother if 9th Circuit hadn't issued a single immediate mandate in two differently situated cases yesterday…
— Amanda C. Goad (@AGoadEsq) October 8, 2014
The Ninth Circuit really stepped into it when, to everyone’s surprise, it preemptively issued a mandate requiring Idaho and Nevada to begin issuing marriage licenses to same-sex couples after ruling that those marriage bans were unconstitutional. As I understand it, mandates like this are typically a last resort act, issued after the winning parties went back home and were unsuccessful in getting the legal entities there to implement the Appeals Court ruling.
In Idaho’s case, that would have meant going to Ninth Circuit panel that issued the stay and ask it to rescind it. That would have given lawyers for Idaho’s Gov. Butch Otter a chance to have their day in court, lodge their intention to appeal and argue that the stay should remain in effect. Otter wasn’t given that day in court, and so it’s pretty easy to see why Kennedy would have slapped the Ninth for short-circuiting the process and overturn the mandate.
As for Nevada, the ordinary path would have been for lawyers for same-sex couples to go back to Federal District Judge Robert C. Jones and petition him to order state officials to begin granting marriage licenses to same-sex couples. Jones had upheld that state’s ban on same-sex marriage in 2012. Jones ordinarily would have had two options. He could have issued the order, or he could have refused to do so. The second option would have seemed unlikely, since the State of Nevada had already said that they weren’t going appeal. But if he had refused to issue such an order, then that ordinary path would have had those lawyers go back to the Ninth to ask for a mandate.
But because the Ninth issued its preemptive mandate on its own initiative, county clerks across Nevada were preparing to begin issuing marriage licenses this morning. But then, Idaho Gov. Otter’s lawyers went to Kennedy to get the mandate overturned, and since the Ninth Circuit combined the two cases into a single mandate “for purposes of disposition,” Kennedy’s overturning of Idaho’s mandate also meant that he overturned Nevada’s mandate as well. Which means that Nevada same-sex couples this morning suddenly found themselves subject to the whims of an Idaho governor, all because the Ninth Circuit’s brash action — and because the Ninth found it too bothersome to type up two separate papers instead of one.
So now the Nevada lawyers were back doing what they ordinarily would have done anyway. They went to Judge Jones and asked him to enforce the Ninth Circuit’s ruling overturning his 2012 ruling and striking down Nevada’s marriage equality ban. Remember those two options I said he had? I left out a third option, the one that he ultimately took: he recused himself this morning and referred the case to the district’s chief judge for reassignment.
Update: Marriages are back on in Nevada.
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Ben in oakland
October 8th, 2014
thanks for the explanation.
Nevada is now marching on.
enough already
October 8th, 2014
Fat lot of good it did him – Justice Kennedy just lifted the stay on Nevada.http://www.towleroad.com/2014/10/scotus-justice-anthony-kennedy-lifts-stay-on-same-sex-marriage-in-nevada.html
Why oh why do Christians get all these extra cut-outs and rules bent in their favour? Is this a constitutional republic or a far-right Christian theocracy?
Nathaniel
October 8th, 2014
Lets hope future rulings on the matter keep this mess in mind. Suddenly, I’m glad the federal judge with the NC cases is taking his sweet time. Better to get it right once, then to have to go back and fix it (potentially hurting people in the process).
Timothy Kincaid
October 8th, 2014
Sorry to disappoint you, Nathaniel…
well, no, actually I’m delighted. Judge Osteen has lifted the North Carolina stay.
Nathaniel
October 8th, 2014
Thanks, Timothy. Not really hearing it anywhere else, and my one other source is even more confusing. I still expect our state leadership to try to fight it, but they don’t have their sh*t together, so maybe it will take a few days before they can even ask Justice Roberts for a stay. Really, though, Osteen has been sitting on these cases for a while. When he gave “both sides” 10 days to file updated briefs, I was sure we would be waiting for action at least until the 20th. Fortunately, our Democrat GA is still the only one assigned to defend the law, so his “I give up” statement apparently sufficed. It is after 5 pm here, so who knows what will happen next. Tomorrow should be interesting. This has been a very interesting week.
Here’s a link to the only other article I have found.
http://www.newsobserver.com/2014/10/08/4217518_federal-judge-in-greensboro-lifts.html?rh=1
TomTallis
October 8th, 2014
Apparently Nevada will not be issuing marriage licenses today. There is considerable confusion although the 9th Circuit has rescinded its mandate.
http://www.reviewjournal.com/news/nevada/same-sex-marriages-delayed-again-vegas
jpeckjr
October 8th, 2014
My main thought: due process is a Constitutional right, and even our opponents are entitled to it. I think the 9th Circuit should have followed established due process procedures. It would have slowed things down a day or two in NV where the state had stopped defending, a couple of months in ID. But would have been clearer for all concerned.
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