Justice Anthony Kennedy ended the stay as to the Nevada marriage case in a second order filed Wednesday afternoon, likely clearing the path for same-sex couples to be able to marry there soon.
In the initial order from the justice, the final order, called a mandate, was stayed both as to Idaho — where state officials had requested a stay — and Nevada. The second order, available at the bottom of this article, only provides for a stay of the Idaho decision.
WASHINGTON — In response to a last-minute request from lawyers for the state of Idaho, Supreme Court Justice Anthony Kennedy on Wednesday stopped Tuesday's federal appeals court marriage ruling from from going into effect immediately.
The temporary order appears to have put same-sex couples' marriages on hold in both states impacted by Tuesday's decision from the 9th Circuit Court of Appeals — Idaho and Nevada — despite the request only having coming from Idaho officials.
Under a Tuesday evening order from the 9th Circuit, the mandate in the cases challenging both Idaho and Nevada's bans on same-sex couples' marriages was issued. The mandate is the final step the appeals court needed to take in order to put its ruling that the bans are unconstitutional into effect.
Following the issuance of the mandate, Nevada officials announced they would not be appealing further and at least some local officials began preparing to allow same-sex couples to begin marrying on Wednesday. Idaho officials gave no such indication, with the state's attorney general saying, "It's still too early to know fully what the decision and orders mean for Idaho and how the state will proceed."
On Wednesday morning, however, lawyers for Idaho went to the Supreme Court, asking Kennedy to issue a temporary stay of the 9th Circuit's mandate, noting, "Unless stayed, the district court's injunction and the Ninth Circuit's mandate will compel Idaho officials to issue marriage licenses to same-sex couples beginning at 8:00 a.m. MDT this morning."
Although the application seeking the stay only came from Idaho officials, Kennedy's order issuing a stay includes the 9th Circuit case numbers of both the Idaho and Nevada cases. From the language of Kennedy's order, then, the rulings as to both Idaho and Nevada are on hold for now.
It was not immediately clear why Kennedy's order referenced the Nevada case number, although a Tuesday decision from the 9th Circuit might be why. On Tuesday, in a brief order issued just prior to the release of its decision striking down both states' bans, the 9th Circuit stated, "These cases are consolidated for purposes of disposition." As such, all of the orders — including the mandate — issued in the two states' cases were handled in a single order each time on Tuesday, meaning there was only one mandate issued as to both states' cases.
[This post was updated as new information became available, with the final update at 11:30 a.m.]
Clark County, Nevada, will not marry same-sex couples on Wednesday.
Following Wednesday morning's stay from Justice Kennedy, Idaho Attorney General's Office spokesman Todd Dvorak told BuzzFeed News:
"Here is where things stand right now:
- The AG has filed a motion with the 9th U.S. Circuit Court of Appeals (filed early this morning) seeking recall of the mandate issued by the court last night
- The AG also intends to file a motion for rehearing en banc with the 9th. It’s our belief we have 14 days to file that motion
- The AG and his attorneys will be working with the Governor’s lawyers on filing briefs to the SCOTUS as requested by Justice Kennedy’s stay, issued minutes before marriage certificates were to be issued this morning.
That’s the legal roadmap as we know it now. This is a fluid situation, however, and I will be sending out a media statement later today."
BuzzFeed News will have more information as it is made available.
Update at 3:31 p.m.: Here is Justice Anthony Kennedy's order:
Lambda Legal's legal director, Jon Davidson, issued a statement about the justice's second order, "As we had hoped, the Supreme Court has clarified this morning's order and explained that there is no stay of the Ninth Circuit’s mandate as to Nevada. The temporary stay applies only to Idaho. We are delighted and hope officials in Nevada will continue to move quickly, as they had been, to start issuing marriage licenses to same-sex couples."
The Coalition for the Protection of Marriage filed emergency application for a stay in the Nevada marriage case with Justice Anthony Kennedy. The coalition was the proponent of the marriage ban initiative in Nevada.
It was the proponents of Proposition 8 in California who had attempted to appeal the marriage case there, but the Supreme Court ultimately rebuffed their attempt to do so. Since that ruling, appeals courts and the Supreme Court have refused to issue stays of lower court rulings on marriage based on attempted appeals made solely by non-state defendants.
Subsequent to the second order from Justice Anthony Kennedy, the 9th Circuit Court of Appeals recalled the mandate in the Idaho marriage case, per an order it filed Wednesday afternoon.
Additionally, regarding the Coalition for the Protection of Marriage's request before the 9th Circuit asking it to recall its mandate in the Nevada marriage case, the court called for responses to that request by 5 p.m. PT Thursday.