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A “message” from the Court on same-sex marriage?

With one judge suggesting that the Supreme Court has sent “a clear message” that it does not want rulings nullifying state bans on same-sex marriage to go into effect while they are being challenged in appeals by state officials, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Tuesday evening temporarily barred such marriages in Idaho.   The panel’s order, and the separate concurring statement of Circuit Judge Andrew D. Hurwitz of Phoenix, can be read here.

The message that Judge Hurwitz relied upon was found, he said, in the Supreme Court’s two-sentence order, issued without dissent on January 6, temporarily blocking a ruling that would have cleared the way for same-sex marriages in Utah.  The Justices did not explain their order, but a number of lower courts have relied upon it — at least in part — in issuing stays of such rulings.  None, however, has gone as far as Judge Hurwitz did in interpreting the meaning of that order.

Without that view of what the Supreme Court had done, Judge Hurwitz wrote that he would not have supported a postponement of the Idaho ruling. He said he found it “difficult to conclude that the Idaho ban on same-sex marriage would survive” its review in the Ninth Circuit.  “I do not think the Idaho [officials] have made a strong case” for delay.

A federal magistrate judge in Boise had ruled a week ago that the Idaho ban was unconstitutional, and ordered state officials to begin issuing marriage licenses three days later.  However, state officials went to the Ninth Circuit, and got at least a temporary postponement while the panel studied whether to impose a further stay.  That came Tuesday.

Judge Hurwitz was joined in the stay-pending-appeal order by Circuit Judge Consuelo M. Callahan of Sacramento and Senior Circuit Judge Edward Leavy of Portland.  The order itself cited the Supreme Court’s order in the Utah case, but did so without elaboration.

Judge Hurwitz wrote: “I concur in the order granting the stay pending appeal.  But I do so solely because I believe that the Supreme Court, in Herbert v. Kitchen, has virtually instructed courts of appeals to grant stays in the circumstances before us today….I cannot identify any relevant differences between the situation before us today and Herbert.”

The panel’s order put the Idaho case (Latta v. Otter) on an expedited briefing schedule, with written arguments to be completed by August 1 at the latest, and with a hearing during the week of September 8.

The Supreme Court’s order delaying the ruling in Utah did not come in time to prevent the marriages of some 1,300 same-sex couples in that state.  On Monday, in a sequel, a federal judge ruled that state officials in Utah must recognize those marriages as valid — but that order was put on hold for twenty-one days by the judge so that the state could appeal.

Besides the Idaho case, the Ninth Circuit has under review a decision by a federal judge in Nevada upholding that state’s ban and a ruling by a federal judge nullifying Oregon’s ban.  The same panel that blocked the Idaho ruling on Tuesday had refused a similar order in the Oregon case, but that case does not involve an appeal by state officials but rather by a group, the National Organization for Marriage, a strong foe of same-sex marriage.  It is appealing a denial of a right to join in the case to defend the ban because Oregon officials refuse to do so.



Recommended Citation: Lyle Denniston, A “message” from the Court on same-sex marriage?, SCOTUSblog (May. 20, 2014, 11:25 PM),