Wednesday 5:28 p.m.  The following is an updated version of a post that appeared earlier today, taking account of the Supreme Court’s action in the Kansas case.

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The Supreme Court, with two Justices dissenting, on Wednesday afternoon cleared the way for same-sex couples to marry in Kansas — the thirty-third state on the list.  In a brief order, the Court voted to leave intact a federal judge’s order nullifying the state’s ban on same-sex marriages.  There was no explanation, for the order or by the dissenters.

Because the judge’s ruling had been on hold only because of a temporary Supreme Court order issued Monday, the Kansas ruling took effect when the Justices’ new order lifted the earlier postponement.   State officials are now under a federal court requirement to start issuing marriage licenses to same-sex couples.

The Court has issued a series of orders in same-sex marriage cases over the past eleven months, but the Kansas order marked the first time that members of the Court had recorded dissents.  Justices Antonin Scalia and Clarence Thomas noted only that they would have granted the delay sought by the Kansas attorney general.

Kansas officials had attempted to show that their case was different from others that the Supreme Court had chosen to leave undisturbed, arguing that the federal judge’s order was an invalid attempt to second-guess a Kansas Supreme Court order delaying the issuance of same-sex marriages.  The federal judge had rejected that claim, but it may have been the one that drew the implied support of Justices Scalia and Thomas.

The state still has an appeal pending at the U.S. Court of Appeals for the Tenth Circuit, but that has little promise, because that appeals court has struck down bans in two other states in its region — Oklahoma and Utah.  The Supreme Court refused to review those Tenth Circuit rulings on October 6.  The Kansas ban is almost identical to those in other states.

The Kansas plea for delay to the Supreme Court had been closely watched, since it was the first such request to go to the Court since a split developed in the federal appeals courts on the constitutional controversy over same-sex marriage.  It is unclear whether that made any difference to the Supreme Court’s discussion of how to react to the Kansas case.

However, the new split in the courts of appeals might also have been a reason for the dissents by the two Justices.

The decision by the U.S. Court of Appeals for the Sixth Circuit, creating the split because it upheld same-sex marriage bans in four states, has not yet been appealed to the Supreme Court, but several petitions for review are expected to be filed in coming days, perhaps even later this week.

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NOTE TO READERS: The following is the earlier post that appeared on the blog, dealing with a ruling in South Carolina.

A federal judge in South Carolina, finding the outcome dictated by a higher court, ruled on Wednesday that the state may not continue to enforce its ban on same-sex marriage.  The ruling by U.S. District Judge Richard Mark Gergel in Charleston sets the stage for another case to make its way to the Supreme Court, even as the Justices are considering how to react to a similar case from Kansas. Action in the Kansas case may come at any time.

South Carolina, along with Kansas and Montana, are the only states where same-sex marriages had not yet been allowed even after a federal appeals court had nullified such bans in other states in their regions.  The South Carolina judge put his ruling on hold until November 20 to allow the state time to ask for a delay from the U.S. Court of Appeals for the Fourth Circuit.  The judge said the state had not made a case for a longer delay while it appealed.

A ruling by the Fourth Circuit in a Virginia case led Judge Gergel to rule against South Carolina’s prohibition on new same-sex marriages.  Another federal judge in South Carolina is considering whether the state must recognize existing same-sex marriages performed in other states for South Carolina couples.

Kansas has asked the Supreme Court for a delay in that state, after the U.S. Court of Appeals for the Tenth Circuit denied a postponement.  The Tenth Circuit’s view against state bans was spelled out in rulings on Oklahoma and Utah.   Montana is in the Ninth Circuit’s geographic area; that appeals court has nullified bans in Alaska, Idaho, and Nevada.  A federal trial judge in Great Falls will hold a hearing next Monday on a challenge to the Montana ban.

If marriages are now allowed in South Carolina and Kansas, that would make a total of thirty-four states, plus Washington, D.C., where such unions are legal.

While Judge Gergel noted that there is now a split among federal appeals courts on the underlying constitutional issue, with the decision last week by the U.S. Court of Appeals for the Sixth Circuit upholding bans in four states in its region, the Charleston jurist said the more important fact was that the Fourth Circuit had taken a position against such prohibitions and he was bound to follow that precedent.

Since the Supreme Court in the case of United States v. Windsor some seventeen months ago launched a series of new court rulings on the constitutional controversy, only the Sixth Circuit and two federal district court judges have upheld bans.   As of now, there have been no post-Windsor rulings in four federal appeals courts — the First, Fifth, Eighth, and Eleventh Circuits — but cases are working their way toward each of those courts.

Posted in Featured, Same-Sex Marriage Post-Windsor, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Same-sex marriages may go ahead in Kansas, SCOTUSblog (Nov. 12, 2014, 5:29 PM), https://www.scotusblog.com/2014/11/setting-up-another-same-sex-marriage-case/