Urging the Supreme Court to stay with its recent pattern of allowing same-sex marriages to go forward across the nation, two lesbian couples in Kansas on Tuesday afternoon opposed a plea by state officials for delay.  The opposing brief contended that the new split that has developed among federal appeals courts on the controversy is no reason to change course even though the split may lead the Justices to step in to resolve the question.

Justice Sonia Sotomayor is considering the state’s request to postpone a federal judge’s ruling in favor of same-sex marriage while the state appeals.  Sotomayor issued a temporary order for delay Monday evening, while awaiting the couples’ brief.  The Justice or the full Court could act at any time.

The new brief asserted that state officials in Kansas have not made any arguments for postponement that have not already been made, and impliedly rejected, by the Supreme Court in a series of orders by the Justices over the past month declining to intervene in the still-spreading controversy.

The couples’ lawyers relied on the fact that, since the Justices on October 6 refused to grant review of cases from five states, bans on same-sex marriage have fallen in thirteen other states and officials in those states have stopped enforcing them.

In the federal circuits where there are now appeals court decisions striking down such bans, the new filing said, only Kansas and two other states — Montana and South Carolina — are still engaged in legal battles over enforcing their laws.

The Kansas application is the first legal plea to reach the Supreme Court since the U.S. Court of Appeals for the Sixth Circuit last Thursday upheld bans in all four states in its region.  The Kansas maneuver is a test of whether the Justices will now begin to slow or halt the spread of same-sex marriages until appeals arrive from the Sixth Circuit’s decision.  Those petitions are expected to start reaching the Court as early as this week, lawyers involved have said.

The Kansas couples involved in that state’s case conceded that the split among appeals courts may well lead the Supreme Court to grant review of some case, but that does not necessarily mean that there is a fair prospect that the Court would go on and uphold bans in the way that the Sixth Circuit did.   There has to be a prospect of such a final decision before a postponement request can succeed in the meantime, the couples’ brief noted.

The document was critical of the Sixth Circuit’s ruling, even while noting that the decision “did not conclude that such marriage bans advance a legitimate governmental objective that justifies the severe harm imposed on same-sex couples and their families.”  But, it added, the Sixth Circuit’s decision was wrong in concluding that it had no duty to decide the constitutionality of the bans: “This Court has properly rejected such a cramped view of the judiciary’s role in our constitutional scheme.”

The document cited, among other precedents, the Supreme Court’s decision in 1803 in Marbury v. Madison, declaring that “it is emphatically the province and duty of the judicial department to declare what the law is.”

The couples’ brief argued that it is not enough for opponents of same-sex marriage to simply cite the Sixth Circuit on their side in the controversy, “in the face of four circuit court decisions (and more than thirty district court decisions) holding to the contrary” over the past seventeen months.

It is unknown, at this point, whether the state of Kansas will now file a reply brief.

 

 

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

Recommended Citation: Lyle Denniston, Delay in Kansas same-sex marriages opposed, SCOTUSblog (Nov. 11, 2014, 4:33 PM), http://www.scotusblog.com/2014/11/delay-in-kansas-same-sex-marriages-opposed/