SCOTUS lifts stay of 9th Circuit Court ruling on same-sex marriage in Idaho

Lyle Denniston at SCOTUSblog reports, No delay on Idaho same-sex marriages :

Without explanation, the Supreme Court late Friday afternoon rejected a request by state officials in Idaho to postpone a lower court ruling that had nullified the ban on same-sex marriage there.  The two-sentence order also lifted an earlier order by Justice Anthony M. Kennedy temporarily delaying that decision by the U.S. Court of Appeals for the Ninth Circuit.

There were no noted dissents from the Court’s new order.  Although it gave no reasons, the Court’s action was a further indication that the Justices are unwilling to be drawn into the constitutional controversy at this point, leaving it to lower courts to continue to explore it.  Idaho officials had tried to convince the Court that their case was different from the ones that the Court had bypassed on Monday.

[T]he Ninth Circuit Court is expected to act shortly to put its decision back into full effect, clearing the way for gay and lesbian couples in Idaho to seek marriage licenses.

(NOTE: The Ninth Circuit Court, in an order Friday, formally brought to an end a pending appeal on same-sex marriage in Hawaii.  That state adopted a new law in November to permit such unions, but there was a lingering case in the Circuit Court.  That case, the Circuit Court ruled, is now moot — that is, legally dead.  Hawaii has been counted among the states where same-sex marriage was allowed, before this week’s developments.)

The Idaho Statesman reports, Supreme Court withdraws gay-marriage stay. Here’s why Idaho marriages can’t begin yet:

The Supreme Court withdrew Justice Kennedy’s Wednesday stay about 3 p.m. Friday. But it may not have any practical effect.

Why no effect?

Because right now the case is in the hands of the 9th Circuit Court of Appeals. And the 9th Circuit must still take the final legal step to make its Tuesday ruling effective.

But didn’t the 9th Circuit already lift the ban?

Yes — and then un-lifted it . . .

* * *

So why can’t gay marriages begin now that the Supreme Court stay is lifted?

Because the 9th Circuit recalled its mandate. That means its order has not been implemented. If the 9th chooses to re-hear the case, it could hold off on issuing the mandate pending the en banc hearing. If the 9th decides not to hear the case en banc, then the 9th could reissue the mandate to implement its ruling.

At that point, it would be up to the state of Idaho to decide if it wants to appeal to the Supreme Court to grant a stay and consider the case.

Any appeal by Idaho will meet with the same fate as the other circuits so long as there remains no conflict among the circuits. There are still the cases argued to the Sixth Circuit Court of Appeals earlier this year with decisions still pending.

UPDATED Saturday 7:04 a.m.  The couples challenging the Idaho ban have asked the Ninth Circuit Court to put its ruling into effect, and the court has called for briefs on that question, to be filed by Monday. h/t SCOTUSblog.