With the new disagreement among federal appeals courts on the constitutionality of state bans on same-sex marriage, lower courts and state officials are beginning to react, and the Supreme Court will be drawn into the midst of the new layer of controversy on Monday.

The attorney general of Kansas, Derek Schmidt, said on Friday that he will go to the Supreme Court “before Tuesday” with a plea for delay of such marriages in that state.   He did so immediately after the U.S. Court of Appeals for the Tenth Circuit refused to postpone a federal trial judge’s ruling striking down the Kansas ban; the judge’s ruling is due to go into effect at 6 p.m. (Eastern time) on Tuesday.

The Kansas request will go initially to Justice Sonia Sotomayor, who handles emergency legal matters from the geographic region of the Tenth Circuit.  She has authority to act on her own or share the issue with her colleagues.

That will mark the first time the Supreme Court has been asked to take action on the same-sex marriage issue in the wake of Thursday’s decision by the U.S. Court of Appeals for the Sixth Circuit, upholding the bans in four states — a decision that conflicts with earlier decisions by four other federal appeals courts, including the Tenth Circuit Court.  The Justices have refused to delay recent decisions nullifying state bans, but all of those actions came before the disagreement had developed among the courts of appeals.

While lawyers for same-sex couples involved in the four states of the Sixth Circuit plan to file challenges in the Supreme Court to the Thursday decision, those are not likely to be filed until at or near the end of this coming week and would not require the Justices to act immediately, and probably not for a few weeks.

The Kansas challenge probably will be acted upon very soon.

The state’s attorney general, in addition to planning to ask the Supreme Court to delay  same-sex marriages in his state, sought to take immediate advantage of the Sixth Circuit’s decision, relying directly on it as he filed a separate request with the Tenth Circuit regarding the appeal the state has pending there.  Schmidt asked the Tenth Circuit to hear the state’s appeal at the en banc (full bench) level, rather than before a three-judge panel.  The Tenth Circuit called for a response to that request, to be filed by November 21.

Meanwhile, the first federal court to comment on the Sixth Circuit’s decision upholding state bans refused to follow it, and struck down another state’s ban — in West Virginia.  Same-sex marriages have already begun in West Virginia, following a decision of the U.S. Court of Appeals for the Fourth Circuit.  (The Fourth Circuit ruling came in a case involving a ban in another state in that region — Virginia — but was binding on all states in the circuit.)

Chief Judge Robert C. Chambers of Huntington on Friday formally nullified the West Virginia ban.  Near the end of a twenty-one-page decision, he included a footnote (see footnote 5 starting at the bottom of page 16 of the opinion), saying that the Sixth Circuit “fails to recognize the role of courts in the democratic process.  It is the duty of the judiciary to examine government action through the lens of the Constitution’s protection of individual freedom.  Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states.”

The Sixth Circuit Court rejected all of the arguments by same-sex marriage advocates, but the main theme of its ruling was that the issue should be left to the voters and to the legislatures.

In another development on Friday, the string of federal court rulings nullifying state bans lengthened, reaching Missouri.  U.S. District Judge Ortrie D. Smith of Kansas City ruled that the Missouri ban violates the constitutional guarantees of legal equality and due process.  The opinion, perhaps much of it prepared before Friday, did not mention the Sixth Circuit Court’s ruling on Thursday upholding such prohibitions.

Missouri Attorney General Chris Koster said the state would now appeal to the U.S. Court of Appeals for the Eighth Circuit.  That appeals court has not ruled on the same-sex marriage issue since 2006, when it rejected a challenge to the ban.  However, Judge  Smith, in his decision, found that the precedent then was not binding on the new case, since he noted that the question of same-sex couples’ right to seek marriage was not raised or decided by the Eighth Circuit Court eight years ago.

That is a conclusion that the state seems sure to challenge in its appeal, since it had raised it before Judge Smith, and also in same-sex marriage cases in Missouri state courts.

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

Recommended Citation: Lyle Denniston, Kansas to ask Court to delay same-sex marriages, SCOTUSblog (Nov. 9, 2014, 12:22 AM), https://www.scotusblog.com/2014/11/kansas-to-ask-court-to-delay-same-sex-marriages/