FURTHER UPDATE 5:51 p.m. Reacting to Justice Kennedy’s order, the Ninth Circuit recalled its orders implementing its Tuesday decision on the Idaho ban, and called for briefs on whether it should also do so on its order on the Nevada case. The new order is here. However, it did not order a stop to same-sex marriages in Nevada in the meantime. In addition, an advocacy group opposed to same-sex marriage filed an application asking Kennedy to postpone the Ninth Circuit decision as it applied to Nevada. (UPDATE Thursday morning: Justice Kennedy has asked for a response by 5 p.m. today to this new application.)
UPDATE 3:18 p.m. Justice Kennedy on Wednesday afternoon issued a revised order, limiting the postponement to the situation in Idaho, thus excluding Nevada. That puts back into effect a Ninth Circuit ruling nullifying the Nevada ban, and thus clears the way for issuing marriage licenses in that state to gay and lesbian couples. The order contained no explanation of the change, but it apparently was due to the captions the Ninth Circuit had put on its order putting its decision into effect. Lawyers for a gay rights advocacy group, Lambda Legal, had asked for a clarification of the earlier Kennedy order.
An order rushed out by Supreme Court Justice Anthony M. Kennedy as the Court was about to go to the bench this morning has created — for the time being — a wave of confusion about the status of same-sex marriage in Nevada.
Officials in that state some time ago stopped defending their state’s ban, so they were prepared for marriage licenses to be issued to gay and lesbian couples within hours after that ban was struck down yesterday by the U.S. Court of Appeals for the Ninth Circuit. They are now holding off, it appears, because of the uncertainty.
Nevada’s case in the Ninth Circuit had been a stand-alone case until yesterday afternoon, when it was joined with a case from Idaho for purposes of the final decision, which emerged shortly after that. Both bans were nullified by the three-judge panel, with a federal trial judge’s ruling upholding the Nevada ban being overturned, and a different federal trial judge’s ruling against Idaho’s ban being upheld.
The decision ended with an order to Nevada officials to stop enforcing that state’s prohibition.
Shortly afterward, the Ninth Circuit put its ruling into immediate effect, by issuing what is called a “mandate.” That is a simple order to implement what a court opinion has declared as the law. With the release of that mandate, the legal path was cleared for gay and lesbian couples to begin applying for marriage licenses as early as 10 a.m. (Eastern time) Wednesday.
During the night — actually, at 3:30 a.m. for the state and at 5 a.m. for the governor — Idaho officials filed papers in the Ninth Circuit, asking that the mandate be pulled back (“recalled”), and that the court of appeals put its decision on hold until the state could seek review of the case before the full Ninth Circuit bench. In the alternative, the state asked for a brief postponement to allow time to seek a delay from the Supreme Court. As of midday (Eastern time), the Ninth Circuit had not acted on those requests.
Early in the day Wednesday, the governor filed an emergency plea to Supreme Court Justice Anthony M. Kennedy (see the post below), asking that the Ninth Circuit’s ruling be put on hold until the requests made to the that court had been resolved. Nevada did not file its own application for delay and, in view of the position its governing officials have taken, was not in favor of any delay.
Even so, the Kennedy order included the Nevada case along with the Idaho case in the order delaying the whole case for more than a day, requiring a response to the Idaho application. That is due at 5 p.m. Thursday. Presumably, a response would be filed only by the lawyers for the same-sex couples in Idaho, since the Nevada part of the litigation did not appear to be involved.
Only a single mandate had been issued by the Ninth Circuit, thus seemingly applying to Nevada as well as to Idaho. Unless that is clarified, and there were indications today that Nevada officials were going to seek such clarification, same-sex marriages in Nevada appear to be barred for the time being.