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Tallying the same-sex marriage states (UPDATED)

UPDATED 11:01 p.m.  A federal judge in Nevada on Thursday night ordered state officials to stop enforcing the state’s ban on same-sex marriage, thus setting up the opportunity for gay and lesbian couples to get marriage licenses starting Friday morning.  The order was issued by U.S. District Judge James C. Mahan.  He was designated to take over the case on Wednesday, after District Judge Robert C. Jones took himself off of the case earlier that day.  Judge Jones had upheld the Nevada ban in November 2012, and was reversed by the Ninth Circuit Court on Tuesday.


With some hesitancy in county clerks’ offices here and there, the campaign to open more states to same-sex marriage has now reached a majority:  twenty-six states, plus Washington, D.C.  Beyond the five states whose cases ended in the Supreme Court on Monday, adding to the nineteen that were counted before then, the legal process is at or near its end in two more:  Colorado and Nevada.

The opportunities for gays and lesbians to get marriage licenses in Colorado began earlier in the week after both the U.S. Court of Appeals for the Tenth Circuit and the Colorado Supreme Court closed out cases before them.

And the option to marry also appeared on Thursday to be imminent in Nevada, where state officials were no longer defending a ban and a private advocacy group withdrew its legal protests in the Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.  (The withdrawal filings, containing no explanation for the move, are here and here.)  After the private group pulled out of the case, the Ninth Circuit noted that its earlier order putting its decision into effect remained “in full force.”

It appears that West Virginia will soon be included, after its governor and attorney general said on Thursday that they would no longer carry on the court battle to save their state’s ban.  Their state is included in the federal judiciary’s Fourth Circuit, and the nullification of the Virginia ban in the court of appeals for that region suggested that bans also would fall in the Carolinas and West Virginia.

In South Carolina, however, the state supreme court on Thursday ordered all probate judges in the state not to issue any marriage licenses, at least while the issue remained pending in a federal district court.  The state’s highest court acted at the request of the state attorney general after the probate judge in Charleston County moved to issue a license to a lesbian couple.

In North Carolina, a federal trial judge on Thursday called for new briefs on what step should be taken next on the challenge to that state’s ban.

A decision by the Ninth Circuit on Tuesday to nullify a ban in Idaho (along with the ban in Nevada) created the likelihood that prohibitions would soon be set aside also in Alaska, Arizona, and Montana.  However, Idaho has a challenge pending with Supreme Court Justice Anthony M. Kennedy; the same-sex couples involved in that case filed their response late Thursday afternoon, arguing that state officials “point to nothing that would justify” postponement of the Ninth Circuit decision “only days after the Court denied every other petition presenting the same claim.”

A decision by the Tenth Circuit against bans in Oklahoma and Utah (and left intact by the Supreme Court on Monday) suggested that similar prohibitions would be ended in Kansas and Wyoming.  In Wyoming, a federal trial judge on Thursday scheduled a hearing for October 16 on whether to allow same-sex couples to begin marrying in that state.  In Kansas, state officials have said they were studying the situation, but a state judge in a district in the Kansas City metropolitan area on Wednesday ordered clerks in that district to begin issuing marriage licenses to same-sex couples.

Developments in reaction to the Supreme Court’s action on Monday thus continued at the same accelerated pace that the courts have been following for the past sixteen months, with the prospect that, in a matter of days, as many as thirty-five states will be allowing gays and lesbians to marry — unless the Supreme Court should suddenly change its mind and opt to get involved.

A sign of the Court’s current view may come in the next day or so when it is expected to act on the Idaho case.


Recommended Citation: Lyle Denniston, Tallying the same-sex marriage states (UPDATED), SCOTUSblog (Oct. 9, 2014, 7:30 PM),