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New test of Court’s view on same-sex marriage (UPDATED)

UPDATED 5:58 p.m. Justice Sonia Sotomayor has blocked the federal judge’s order, calling for a response by the same-sex couples to be filed by 5 p.m. (Eastern time) on Tuesday.  The delay, temporarily preventing issuance of licenses to same-sex couples in Kansas, will remain in effect until there is a further order either by Justice Sotomayor or by the full Court. The Sotomayor order is here.


The state of Kansas, making a strong states’ rights claim, asked the Supreme Court on Monday afternoon to order a delay in same-sex marriages that could occur as early as tomorrow evening, if there is no postponement.  The application (14A503) was filed with Justice Sonia Sotomayor, who handles emergency legal matters from the Tenth Circuit’s region, which includes Kansas.  She can decide it on her own, or share it with her colleagues.

This marked the first time that the same-sex marriage issue has returned to the Court since a split developed in the federal appeals courts on the power of states to ban such unions.  The Kansas application made heavy use of the decision last Thursday by the U.S. Court of Appeals for the Sixth Circuit, upholding bans in four states in that circuit.   The text of the Sixth Circuit decision was filed along with the application; that will put it before the Justices for the first time, but it is not directly under review at this point.  Appeals from the Sixth Circuit’s decision are likely to be filed later this week..

The filing attempted to show that the Kansas case is different from other cases that the Supreme Court has declined to review and refused to delay, contending that a federal judge’s decision striking down that state’s ban conflicted with a previous decision by the Kansas Supreme Court, blocking the issuance of marriage licenses.

Because Kansas is located in the Tenth Circuit, and that appeals court has ruled — in cases involving two other states — that state bans are unconstitutional, federal courts in Kansas are bound by that ruling. The federal trial judge who struck down the Kansas ban has ruled that his decision will go into effect as of 5 p.m. Tuesday (Eastern time), unless delayed by a higher court. The Tenth Circuit refused a state request for delay last Friday.

The Kansas case has been one of the fastest same-sex marriage cases to develop. It was filed by two couples in federal court on October 10 within about an hour after the Kansas Supreme Court, in a temporary order sought by state officials, had put on hold the issuance of marriage licenses anywhere in the state.

After the federal judge issued his ruling, the state’s highest court cancelled plans to hold a hearing on what to do about marriage licensing, and called for new briefs on whether it should stand aside while the federal case goes forward.

The stay application filed today with Justice Sotomayor contended that the federal judge’s ruling had altered “the status quo” because it interfered with the state supreme court’s review. It argued that the federal judge’s decision amounted to “a de facto circumvention” of the state court’s power to go forward with the state case.

“By disregarding the pending efforts of the Kansas Supreme Court to address the issue of same-sex marriage, the preliminary injunction order [issued by the federal judge] ignored the principle of comity,” the Kansas filing said.  “No federal court should intervene to interrupt that adjudicative process.”

Relying upon the Sixth Circuit’s decision sustaining four states’ bans, the Kansas application said there is now an “irreconcilable conflict” among various federal appeals courts, so “the final resolution of these important constitutional questions by this Court will certainly be required.”

The application asked the Court to block the judge’s ruling while the state appeals it to the Tenth Circuit.  If Justice Sotomayor does not grant a delay, the application asked that the question be referred to the full Court.


Recommended Citation: Lyle Denniston, New test of Court’s view on same-sex marriage (UPDATED), SCOTUSblog (Nov. 10, 2014, 5:07 PM),