WASHINGTON — The Supreme Court effectively allowed same-sex couples to begin marrying in Kansas on Wednesday afternoon.
The Supreme Court denied Kansas' request for a stay of the trial court order striking down the state's ban as unconstitutional, ending a hold Justice Sonia Sotomayor had put in place earlier this week while the court considered the request.
Justices Antonin Scalia and Clarence Thomas would have granted the stay, according to the brief order issued by the court's Public Information Office a little past 5 p.m. ET Wednesday.
On Nov, 4, U.S. District Court Judge Daniel Crabtree struck down Kansas' ban as unconstitutional, putting the ruling on hold until 5 p.m. CT Nov. 11.
In the meantime, the state sought a stay pending its appeal from the 10th Circuit Court of Appeals, which denied the request on Nov. 7. On Monday, state officials sought a stay from Sotomayor, who oversees such requests out of the 10th Circuit. Sotomayor issued a stay, pending further order by her or the court.
After the same-sex couple plaintiffs filed a response with the court opposing the stay on Tuesday, the court was silent. Crabtree's temporary stay expired, and all that remained was word from the justices.
On Wednesday, the court answered, with the justices denying the stay request and vacating, or ending, Sotomayor's stay.
Although the justices gave no reasons for their decisions, the decision by Scalia and Thomas to note their position that they would have granted a stay marked a change from recent stay requests out of Idaho and Alaska on marriage cases. In those matters, no justices announced opposition to the decision to allow same-sex couples to marry during any appeals.
In Kansas' request to the justices, they pointed to two distinctions that could have explained the reason why Scalia and Thomas would have granted the stay. First, the state noted pending state court litigation, arguing that the federal court should not have proceeded with the case at all. Additionally, the state pointed to the recent decision of the 6th Circuit Court of Appeals to uphold the ban same-sex couples' marriages in four states, asserting that the court should issue a stay in their case because it was now likely that the justices would be hearing a case on the constitutional marriage question.
With the order issued before 5 p.m. CT, Kansan same-sex couples could yet marry on Wednesday.
It was not immediately clear what effect the Supreme Court's order — and underlying district court order — would have on the pending Kansas Supreme Court litigation and the associated stay of Johnson County District Judge Kevin Moriarty's order that allowed for same-sex couples to marry briefly in Johnson County, Kansas.
It also was not clear whether the Kansas Supreme Court's order would bar same-sex couples from marrying in Johnson County under the federal court order.
The Kansas Supreme Court order only referenced Moriarty's order for Johnson County, however, so no other counties should be impacted by the pending state court litigation.
Here is the relevant portion of the pending Kansas Supreme Court order:
Attorney General Derek Schmidt issued a statement noting Wednesday's Supreme Court stay denial and acknowledging that the district court's injunction — halting enforcement of the state's marriage ban — is in effect.
Asked about the questions surrounding Johnson County, Schmidt's spokesman, Clint Blaes, would not respond beyond providing the statement, adding, "We do not have any additional comment at this time."