FURTHER UPDATE Sunday 7:31 p.m.  Two days after holding a hearing on the constitutionality of Alaska’s ban on same-sex marriages, a federal trial judge in Anchorage on Sunday found that ban to be invalid.  U.S. District Judge Timothy M. Burgess put his ruling into immediate effect.  Alaska is located in the region that is the federal courts’ Ninth Circuit, so that circuit’s decision last week striking down similar bans in two other states would appear to make futile any appeal of Judge Burgess’s ruling.   UPDATED Monday morning: The state’s governor said there will be an appeal; see the statement here.  UPDATED Monday evening: The state has sought a stay of the judge’s ruling to allow an appeal.

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UPDATED Saturday 7:04 a.m.  The couples challenging the Idaho ban have asked the Ninth Circuit to put its ruling into effect, and the court has called for briefs on that question, to be filed by Monday.

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Without explanation, the Supreme Court late Friday afternoon rejected a request by state officials in Idaho to postpone a lower-court ruling that had nullified the ban on same-sex marriage there.  The two-sentence order also lifted an earlier order by Justice Anthony M. Kennedy temporarily delaying that decision by the U.S. Court of Appeals for the Ninth Circuit.

There were no noted dissents from the Court’s new order.  Although it gave no reasons, the Court’s action was a further indication that the Justices are unwilling to be drawn into the constitutional controversy at this point, leaving it to lower courts to continue to explore it.  Idaho officials had tried to convince the Court that their case was different from the ones that the Court had bypassed on Monday.

Meanwhile, a federal judge in Asheville, N.C., on Friday ruled that state’s ban to be unconstitutional, applying a decision that the U.S. Court of Appeals for the Fourth Circuit had made in a Virginia case.  North Carolina is in that judicial  circuit.  The Virginia case was one of those the Supreme Court declined to hear this week.

In the Idaho case, the Ninth Circuit is expected to act shortly to put its decision back into full effect, clearing the way for gay and lesbian couples in Idaho to seek marriage licenses.

With Idaho and North Carolina to be added now, or shortly, to the list of states where same-sex marriages may go forward, the total is twenty-nine.  That includes the nineteen states (and Washington, D.C.) where such unions were permitted before the Supreme Court’s action this week, the five states directly involved in the Supreme Court’s denial of review, and five since then.

In addition to Idaho and North Carolina, the other states added to the list this week were Colorado, Nevada, and West Virginia, either as a result of court orders or a choice by state officials to stop defending their state’s prohibition.

Although the Supreme Court’s consideration of the plea by Idaho officials for  postponement had raised questions about where the Justices currently stand on the ongoing controversy, there was little surprise in their decision not to order a delay.   There still is no split among the federal appeals courts on the basic question of marriage rights for gays and lesbians, with the four circuits that have ruled so far agreeing to reject state bans.

The issue remains unresolved in three other circuits — the Fifth, Sixth, and Eleventh — where cases are currently pending.

(NOTE: The Ninth Circuit, in an order Friday, formally brought to an end a pending appeal on same-sex marriage in Hawaii.  That state adopted a new law in November to permit such unions, but there was a lingering case in the court of appeals.  That case, the Ninth Circuit ruled, is now moot — that is, legally dead.  Hawaii has been counted among the states where same-sex marriage was allowed, before this week’s developments.)

Posted in Same-Sex Marriage Post-Windsor, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, No delay on Idaho same-sex marriages (FURTHER UPDATE for Alaska ruling), SCOTUSblog (Oct. 11, 2014, 7:04 AM), http://www.scotusblog.com/2014/10/no-delay-on-idaho-same-sex-marriages/