[Updated at 4:15 p.m.]
US Supreme Court Justice Anthony Kennedy issued an emergency stay on Wednesday blocking enforcement of a judicial mandate that required same-sex marriages to begin this morning in Nevada and Idaho.
Later on Wednesday, Kennedy issued a clarification that his stay applied only to same-sex marriages in Idaho – not Nevada. That action allows marriages to begin taking place immediately in Nevada.
The stay order was made public roughly a half-hour before officials in Idaho would have been required to start issuing marriage licenses to same-sex couples.
The mandate was issued by the same three-judge panel that struck down same-sex marriage bans in Nevada and Idaho on Tuesday.
Judges routinely allow a period of time to permit the losing side in a case to request a rehearing or file an appeal. The panel of the San Francisco-based Ninth US Circuit Court of Appeals declined to do so. Instead, the three judges, Stephen Reinhardt, Ronald Gould, and Marsha Berzon, announced late Tuesday that their decision would take immediate effect.
Lawyers representing the state of Idaho objected to the appeals court deploying a kind of hurry-up offense. They asked Justice Kennedy to slow the process down to allow them enough time to file their appeal.
Kennedy’s order blocked the Ninth Circuit’s mandate in the Idaho case. He ordered lawyers for the same-sex couples to file a response by Thursday evening.
Kennedy is the author of three major gay-rights decisions by the high court, and is expected to cast the deciding vote should the justices agree to take up a same-sex marriage case.
Kennedy’s action on Wednesday does not reveal anything about his views on the merits of the Idaho case – or any other same-sex marriage case.
Instead, it gives the lawyers for Idaho more time to make their case that the Ninth Circuit’s ruling should be postponed until after the US Supreme Court has an opportunity to decide whether to take up the case.
On Monday, the Supreme Court surprised most court-watchers when it declined to hear any of the seven pending appeals from five different states. The action let stand decisions by three appeals courts invalidating same-sex marriage bans in each of the five states – Utah, Oklahoma, Virginia, Indiana, and Wisconsin.
In his emergency application to Kennedy, Washington Appellate Lawyer Gene Schaerr said the Idaho case was fundamentally different than the cases the high court had recently rejected.
In reaching its decision invalidating marriage bans in Idaho and Nevada, the Ninth Circuit panel applied a heightened level of judicial scrutiny. The panel relied on a legal precedent established in the Ninth Circuit that found any discrimination on the basis of sexual orientation would require heightened scrutiny by judges.
Only the Ninth Circuit and the New York-based Second Circuit have ruled that such a high level of judicial scrutiny is required in a sexual-orientation discrimination case.
In contrast, decisions in nine other federal circuits hold that a lower level of judicial scrutiny is appropriate in such cases.
That “deep and mature” split among the lower courts is a significant issue that the Supreme Court should examine and resolve, Mr. Schaerr said.
Schaerr also said the Supreme Court should examine whether the Ninth Circuit was correct in concluding that man-woman marriage laws discriminate based on sexual orientation.
“The Ninth Circuit’s decision represents an enormous federal intrusion on state power to define marriage,” he wrote.
In the Supreme Court’s landmark 2013 Windsor decision invalidating a portion of the federal Defense of Marriage Act, Justice Kennedy, writing for the majority, said that the law amounted to an impermissible federal intrusion on state power to define marriage.
If that’s so, Schaerr said, then the Ninth Circuit’s decision in the Idaho case amounts to the same kind of federal intrusion on state power.
“Indeed, this case involves not just a refusal by the federal government to accommodate a State’s definition of marriage, as in Windsor, but an outright abrogation of such a definition – by a federal court wielding a federal injunction and acting under the banner of the federal Constitution,” Schaerr wrote in his application to Kennedy.
Schaerr said the Ninth Circuit accelerated the issuance of its mandate in the same-sex marriage cases “in an apparent effort to prevent [the Supreme Court] from having the last word on whether same-sex marriages would occur in Idaho.”