SCOTUS allows same-sex marriages in Kansas pending appeal to the 10th Circuit Court of Appeals

The state of Kansas asked the U.S. Supreme Court on Monday afternoon to order a stay of same-sex marriage in that state, after a federal district court judge struck down that state’s ban.

Justice Sonia Sotomayor ordered a temporary stay, calling for a response by the same-sex couples to the petition by filed by Kansas by Tuesday evening. Kansas is in the 1oth Circuit, which has previously struck down same-sex marriage bans in Utah and Oklahoma, and the U.S. Supreme Court declined to review those appeals.

On Wednesday the Court, with two Justices dissenting, cleared the way for same-sex couples to marry in Kansas — the thirty-third state on the list. Lyle Denniston at SCOTUSblog reports, Same-sex marriages may go ahead in Kansas:

In a brief order, the Court voted to leave intact a federal judge’s order nullifying the state’s ban on same-sex marriages.  There was no explanation, for the order or by the dissenters.

Because the judge’s ruling had been on hold only because of a temporary Supreme Court order issued Monday, the Kansas ruling took effect when the Justices’ new order lifted the earlier postponement.   State officials are now under a federal court requirement to start issuing marriage licenses to same-sex couples.

Kansas officials had attempted to show that their case was different from others that the Supreme Court had chosen to leave undisturbed, arguing that the federal judge’s order was an invalid attempt to second-guess a Kansas Supreme Court order delaying the issuance of same-sex marriages.  The federal judge had rejected that claim, but it may have been the one that drew the implied support of Justices Scalia and Thomas.

The state still has an appeal pending at the U.S. Court of Appeals for the Tenth Circuit, but that has little promise, because that appeals court has struck down bans in two other states in its region — Oklahoma and Utah.  The Supreme Court refused to review those Tenth Circuit rulings on October 6.  The Kansas ban is almost identical to those in other states.

The Kansas plea for delay to the Supreme Court had been closely watched, since it was the first such request to go to the Court since a split developed in the federal appeals courts on the constitutional controversy over same-sex marriage.  It is unclear whether that made any difference to the Supreme Court’s discussion of how to react to the Kansas case.

However, the new split in the courts of appeals might also have been a reason for the dissents by the two Justices.

In another same-sex marriage case from the state of South Carolina, a ruling by U.S. District Judge Richard Mark Gergel in Charleston set the stage for another case to make its way to the U.S. Supreme Court.

A federal judge in South Carolina, finding the outcome dictated by a higher court, ruled on Wednesday that the state may not continue to enforce its ban on same-sex marriage.

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The South Carolina judge put his ruling on hold until November 20 to allow the state time to ask for a delay from the U.S. Court of Appeals for the Fourth Circuit.  The judge said the state had not made a case for a longer delay while it appealed.

A ruling by the Fourth Circuit in a Virginia case led Judge Gergel to rule against South Carolina’s prohibition on new same-sex marriages.  Another federal judge in South Carolina is considering whether the state must recognize existing same-sex marriages performed in other states for South Carolina couples.

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While Judge Gergel noted that there is now a split among federal appeals courts on the underlying constitutional issue, with the decision last week by the U.S. Court of Appeals for the Sixth Circuit upholding bans in four states in its region, the Charleston jurist said the more important fact was that the Fourth Circuit had taken a position against such prohibitions and he was bound to follow that precedent.

A federal trial judge in Great Falls, Montana will hold a hearing next Monday on a challenge to the Montana same-sex marriage ban. Montana is in the Ninth Circuit. That appeals court has already nullified bans in Alaska, Idaho, and Nevada. Arizona elected not to file an appeal to the Ninth Circuit.

Since the Supreme Court in the case of United States v. Windsor some seventeen months ago launched a series of new court rulings on the constitutional controversy, only the Sixth Circuit and two federal district court judges [Louisiana, Puerto Rico] have upheld bans.

As of now, there have been no post-Windsor rulings in four federal appeals courts — the First, Fifth, Eighth, and Eleventh Circuits — but cases are working their way toward each of those courts.

The Court has not yet granted Cert in the Sixth Circuit Court of Appeals cases. Those appeals likely would be heard next Spring, with a ruling anticipated in the last week of June before the Court recesses.