On Friday, July 18, several new “stays” were added to the mounting list of pro-marriage-equality rulings that can’t go into effect as appellate courts ponder where they stand on the issue.
The 10th Circuit Court of Appeals ruled that Oklahoma’s ban on same-sex marriage is unconstitutional, but stayed its appeal while the Tulsa County Clerk, represented by Alliance Defending Freedom and the Tulsa County Attorney’s Office, decides whether to petition the Supreme Court for certiorari. Since Oklahoma’s Governor denounced the court’s decision and said she will fight it, perhaps the state will now step up and have the Attorney General’s office step in to provide the legal representation at the Supreme Court level. It would be less embarrassing for the state if it were not represented by the right-wing Christian ideologues at ADF, whose attorney argued the case at the 10th Circuit.
The U.S. Supreme Court announced a stay of the injunction that had been issued on May 19 by U.S. District Judge Kimball (D. Utah) in Evans v. State of Utah. Judge Kimball had ordered the state to recognize the same-sex marriages that were performed between December 20, 2013, and January 6, 2014, pursuant to Judge Shelby’s Dec. 20 opinion finding Utah’s same-sex marriage ban unconstitutional. The Supreme Court stayed Judge Shelby’s order on January 6, after both Shelby and the 10th Circuit had denied a stay. In this second case, Judge Kimball denied a stay but temporarily put his opinion on hold to let the state seek a stay from the 10th Circuit. Just days ago the 10th Circuit saw no reason to stay Kimball’s ruling, but gave the state until July 21 to get a stay from the U.S. Supreme Court. Utah petitioned the Supreme Court on July 16, the ACLU (representing the plaintiffs) filed its response on the 17th, and Justice Sotomayor, to whom the petition was directed, referred it to the full Court, which granted the stay pending resolution by the 10th Circuit of the state’s merits appeal of Kimball’s ruling. I had read the state’s petition to the Supreme Court and found it very convincing, in light of the Court’s prior decision to stay Judge Shelby’s order.
In Colorado, where clerks in three counties (Adams, Denver, Pueblo) have been issuing marriage licenses to same-sex couples, the Attorney General finally prevailed in his quest to stop those activities as appeals on the constitutionality of the state’s marriage ban work their way through the system. On July 9, a state trial judge in Adams County had declared the ban unconstitutional, but stayed his order pending appeal by the state. The clerk in Boulder had been issuing licenses since late June, when the 10th Circuit issued its ruling in the Utah case. Her position was that even though the 10th Circuit stayed its ruling to give the state an opportunity to seek further review, the court had declared the marriage ban unconstitutional, and she would no longer be complicit with denying same-sex couples their constitutional rights. The Attorney General sued the clerk, seeking a court order to stop her from issuing licenses until there is a final appellate ruling on the Colorado marriage ban. On the same date that one Colorado judge was declaring the ban unconstitutional, another Colorado judge was hearing arguments on the Attorney General’s quest for injunctive relief against the Boulder clerk. The next day, July 10, that court denied the request, and two more clerks — in Denver and Pueblo Counties — jumped into the fray, issuing licenses. The Attorney General appealed the denial of an injunction to the Colorado Supreme Court, which issued a terse ruling on July 18, ordering the Adams County and Denver County clerks to stop issuing marriage licenses pending resolution of the state’s appeal of the July 9 decision from Adams County. Curiously, the court did not mention the Pueblo County Clerk in this order, which emanated from the en banc court. Governor John Hickenlooper, a recent convert to the marriage equality cause, had urged the Attorney General to refrain from these actions and allow the issuance of licenses, and to not appeal the Adams County trial court ruling, but the A.G. disagreed.
Additionally, we should note news from Florida, where the local press reports that Attorney General Pam Bondi’s action in filing an immediate notice of appeal from the Key West marriage equality decision that was issued this week means that decision is stayed pending appeal to the Florida 3rd District Court of Appeal, so the Monroe County clerk will not begin issuing marriage licenses on Tuesday, as the trial court’s order had specified.
The other significant and somewhat puzzling development of the week was that the 7th Circuit, which had scheduled oral argument in the marriage equality cases from Wisconsin and Indiana for August 13, cancelled that argument without explanation, merely stating that it would be rescheduled. Possibly this related to the court’s agreement to allow some briefs to be filed as late as August 11, or to a request by one or both states for more time to prepare for oral argument of their appeals, as August 13 was a super-fast-track date. The pending marriage equality appeals in the 6th Circuit will be argued on August 6, and the pending 9th Circuit appeals will be argued early in September. The 5th Circuit hasn’t set an argument date yet for the Texas appeal. The 4th Circuit heard arguments in the spring and, according to press reports in Virginia, is expected to issue its ruling in the Virginia case by the end of July. Trial courts in other states in the 4th Circuit have put pending marriage equality cases “on hold” until after the 4th Circuit’s opinion is announced. If the 4th Circuit rules in favor of the plaintiffs, one expects it will stay its ruling to allow the defendants (two Virginia county clerks) to decide whether to petition for rehearing en banc or certiorari; this will present the trial judges in the Carolinas and West Virginia with a judgment call about whether to reactivate those cases and decide summary judgment motions, or to hold up while the case plays out in the Supreme Court. This was actually the strategy of District Judge Kern in Oklahoma, who had put that marriage case — which also included a challenge to DOMA Section 3 — on hold while the DOMA challenges in other states worked their way through Supreme Court review.
So, at present, there are lots of balls in the air, and plenty of stayed marriage decisions in places like Idaho, all the states of the 6th Circuit, Virginia, Wisconsin, Indiana, and Texas, as well as Utah and Colorado. At this point, it seems that the only ways to win the right to marry quickly involve either persuading state officials not to appeal a trial court ruling (see Oregon and Pennsylvania, where the late-intervening clerk has not yet given up, having filed a new petition with the 3rd Circuit seeking en banc consideration of the denial of her intervention petition), winning a state constitutional ruling (New Mexico, New Jersey), or getting a legislature to take affirmative action (Hawaii and Illinois since last year’s U.S. v. Windsor ruling from the Supreme Court, which undoubtedly had an influence on wavering legislators).