This morning the Court issued additional orders from its September 29 Conference. Most notably, the Court denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage. This means that the lower-court decisions striking down bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia should go into effect shortly, clearing the way for same-sex marriages in those states and any other state with similar bans in those circuits. Indeed, Virginia Attorney General Mark Herring (who had declined to defend his state’s ban on same-sex marriage) indicated this morning on Twitter that, according to the U.S. Court of Appeals for the Fourth Circuit, the mandate in the Virginia cases would issue at 1 p.m., at which point “marriages can then begin.” In a statement (h/t The Indiana Law Blog), Indiana Attorney General Greg Zoeller (who had defended his state’s ban) indicated that, as a result of today’s orders, “the 7th Circuit now can issue a mandate in the [Indiana] case – essentially, an order that the 7th Circuit’s earlier ruling can take effect. Once a mandate is issued by the 7th Circuit – which could happen later this week – county clerk’s offices will be required by federal court order to issue marriage licenses to otherwise eligible same-sex applicants, and same-sex marriages previously granted by other states will be legally recognized in Indiana.” And just a few minutes ago, the U.S. Court of Appeals for the Tenth Circuit issued orders that lifted the stay of the mandate in the Utah and Oklahoma proceedings (h/t: Chris Geidner via Twitter).
The Supreme Court had issued the first round of orders from the September 29 Conference last Thursday, adding eleven new cases to its docket for the new Term. Many people had anticipated that one or more of the same-sex marriage petitions might be on that list, but the Court did not act on any of them at the time. Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the controversy at this point, because there was no disagreement among the lower courts on that issue. Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions: Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic (Virginia); and Smith v. Bishop (Oklahoma).
We will host a symposium on the cases and the Court’s denials later on today.