UPDATE: Justice Kennedy Denied the request to delay.
Less than 24 hours after California started issuing marriage licenses to same-sex couples, lawyers for the sponsors of the state’s same-sex marriage ban filed an emergency motion Saturday asking the U.S. Supreme Court to step in and stop the weddings.
Attorneys with the Arizona-based Alliance Defending Freedom claim in the petition that the 9th U.S. Circuit Court of Appeals acted prematurely and unfairly on Friday when it allowed same-sex marriage to resume by lifting a hold it had placed on same-sex unions while a lawsuit challenging the ban made its way to and through the Supreme Court.
Alliance Defending Freedom Senior Counsel Austin Nimocks says the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider their decision holding that Proposition 8’s backers did not have legal authority to defend the ban.
The U.S. Supreme Court cleared the way for same-sex marriage to return to the nation’s most populous state by ruling 5-4 on Wednesday that the sponsors of California’s voter-approved ban on same-sex unions lacked authority to defend the measure in court.
More: Same-Sex Marriage Foes Ask High Court to Stop Weddings
More at SCOTUS blog
The actual Filing is here
The application argues that the Supreme Court’s ruling in the Proposition 8 case is not yet “final,” so the stay must remain in place. The Supreme Court ordinarily does not issue its formally binding ruling – known as the “judgment” – in a case from a federal court of appeals until 25 days after it releases its “opinion.” Because the Court issued its opinion in the Proposition 8 case on June 26, it would by default not issue the judgment until Monday, July 22. (The 25th day is July 21, a Sunday.) The principal point of that delay is to permit the losing party to prepare and submit a petition for rehearing to the Justices, though such petitions are as a practical matter never granted.
The parties could ask the Supreme Court to expedite the release of the judgment. That is in fact what occurred last week in the “Baby Girl” Native American adoption case. After a request by the petitioner, the Court ordered the mandate issued in 7 days, rather than the usual 25.
Absent such a request, most observers expected that same-sex marriage in California (in the places in the State it did become available) would not begin again for roughly a month. Even if the court of appeals was not required as a matter of law to wait, that appeared to be the more measured and prudent course. But the Ninth Circuit acted more quickly, lifting the stay before the Supreme Court’s ruling became effective.
Whether the emergency request to Justice Kennedy can succeed is unclear. But it is unlikely. As a formal matter, the Ninth Circuit did not put the Supreme Court’s ruling in the Proposition 8 case into effect prematurely. The Supreme Court held that the proponents of Proposition 8 could not file appeals in federal court. That ruling says nothing about imposing or lifting a stay on same-sex marriage. The court of appeals likely has the authority to act with respect to its own previously entered stay, which is a form of controlling its own docket. Although the court of appeals had previously stated that they stay would remain in effect until the Supreme Court’s ruling was final, it presumably can change its mind.