Status of same-sex marriage appeals in the Ninth Circuit Court of Appeals

The Ninth Circuit Court of Appeals cases regarding state same-sex marriage bans have not exhausted all avenues of appeal, and thus are not finalized.

The Ninth Circuit Court of Appeals has not yet issued a mandate in any case other than Nevada.

Idaho

Lyle Denniston at SCOTUSblog reports, Once more, same-sex marriages allowed in Idaho :

The Ninth Circuit also still has before it, and has not yet taken action on, a plea filed last Wednesday by Idaho officials to delay the ruling until they could seek a rehearing before the en banc Ninth Circuit, and then use the option of going back to the Supreme Court.  That plea has not been mentioned by the Ninth Circuit since it was filed nearly a week ago.

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Idaho’s governor had said that his lawyers read last week’s refusal by the Justices to delay those marriages to be an action of little consequence, and that a new plea for postponement would be made with the Justices if the Ninth Circuit refused a delay  (Those new filings are here and here) — which the Court did.

Idaho has not yet filed its petition for en banc rehearing with the Ninth Circuit Court of Appeals, nor a petition for review with the U.S. Supreme Court. Idaho has said it will take both of these actions. The Ninth Circuit will deny the petition for en banc rehearing. Unless circumstances change dramatically, the U.S. Supreme Court is likely to deny the petition for review as it has in all the other same-sex marriage appeals.  This will take some time, however.

Nevada

The state of Nevada abandoned its defense of the state’s same-sex marriage ban. However an intervenor private party, the Coalition for Protection of Marriage based in Nevada, has filed a motion for en banc rehearing by the Ninth Circuit.

Lyle Denniston at SCOTUSblog reports, Ninth Circuit’s neutrality questioned on gay rights:

[A] private group in that state on Monday asked the full Ninth Circuit to reconsider that ruling to assure that the group got a fair hearing.

The plea by the Coalition for Protection of Marriage, based in Nevada, was filed Monday, along with a statistical study which was said to show that two of the Ninth Circuit’s more liberal judges wind up most often on panels deciding cases involving gay rights. They were on the Nevada case panel.

“En banc review is necessary to assure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral,” the rehearing petition asserted.

The Nevada group has been defending Nevada’s same-sex marriage ban, and continued in that role after state officials decided that they would no longer provide a legal defense.

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It appears that the motion seeks to have the Ninth Circuit recall its already-issued Mandate in the Nevada case, and then have a vote among the Ninth Circuit’s active judges on granting en banc review.  It would take a majority of the active judges to grant en banc review.

The Ninth Circuit has previously denied en banc review of the earlier panel decision adopting “heightened scrutiny” for gay rights cases, and of a separate panel decision striking down California’s ban on same-sex marriage — “Proposition 8.”

The Ninth Circuit will deny the petition for en banc rehearing. That leaves a petition for review to the U.S. Supreme Court. It is almost certain to be denied because the state of Nevada is not the party requesting review.

Alaska

Lyle Denniston at SCOTUSblog reports, Alaska seeks to delay same-sex marriages:

Vowing to come back soon with a plea for the Supreme Court to take on the basic constitutional issue of state power to ban same-sex marriages, state officials in Alaska on Thursday asked the Court in the meantime to delay lower court orders that would allow such marriages beginning on Friday.

The application (Parnell v. Hamby, docket 14A413) seeks a postponement pending final action in the U.S. Court of Appeals for the Ninth Circuit, where the state has filed an appeal.   The request was filed with Justice Anthony M. Kennedy, who handles emergency legal pleas from the geographic area of the Ninth Circuit, which includes Alaska.  Kennedy can act on his own, or refer the request to the full Court.

The Court so far has not agreed to review the constitutionality of any state’s same-sex marriage ban, and its most recent actions have been to turn down state requests for postponements of lower-court decisions against such bans.  It has given no indication when, or if, it will take on the nationwide controversy.

For Alaska, a federal judge in Anchorage last Sunday found its ban to be unconstitutional.  To try to keep that decision from going into effect, state officials asked the Ninth Circuit to delay the decision.  On Wednesday, a three-judge panel put off the judge’s ruling, but only until 3 p.m. (Eastern time) on Friday, to allow the state to ask the Supreme Court for a delay.

Thus, if Justice Kennedy or the full Court do not stay the trial judge’s ruling, gay and lesbian couples would be free to seek marriage licenses, and wed.  If that happens, Alaska would become the thirtieth state in which such marriages are legally permitted.

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Alaska told the Justices that, if it does not get the Anchorage judge’s opinion overturned in the Ninth Circuit, or if it does not get the Ninth Circuit to grant initial en banc review, it will return to the Supreme Court to ask the Justices to take on the controversy without waiting for its Ninth Circuit appeal to play out.

Although the four federal appeals courts that have so far reviewed state bans on same-sex marriage have each agreed to nullify such bans, the Alaska application argued that a split among appeals courts could soon develop, which would then put it up to the Court to step in to resolve the disagreement.

I would expect the U.S. Supreme Court to issue a decision on the motion for stay well before 3 p.m. (Eastern time) today. That still leaves the notice of appeal to the Ninth Circuit Court of Appeals. It is a question whether the appellate court would grant appellate review, depending on how quickly these earlier appeals resolve themselves before the Ninth Circuit and U.S. Supreme Court. Alaska said it would appeal  to the Supreme Court to ask the Justices to take the case without waiting for the Ninth Circuit appeal to play out.

UPDATE: Lyle Denniston at SCOTUSblog reports, Court allows same-sex marriages in Alaska:

Keeping its reasons to itself for doing the same thing again, the Supreme Court on Friday afternoon rejected a plea to stop same-sex marriages from going ahead in Alaska.  By denying the state’s plea for postponement, in a one-sentence order giving no explanation, the Court’s action had the effect of making that state the thirty-first in which gays and lesbians can marry legally.

The Court released its order just moments before a temporary delay imposed by a federal appeals court was due to expire.  With that expiration, a federal trial judge’s order finding Alaska’s ban on same-sex marriage to be unconstitutional went into effect, allowing the issuance of marriage licenses in that state.

The Alaska Dispatch News reports, Supreme Court denies emergency stay; state holiday delays Alaska same-sex marriages:

A stay temporarily halting same-sex marriages in Alaska expired Friday, technically making it legal for couples to seek marriage licenses in the state, while the U.S. Supreme Court denied a further stay sought by the state.

Just one minute after the 9th Circuit stay was dissolved, in a one-line response, U.S. Supreme Court denied a request for a further stay from the state of Alaska.

But while marriages can go forward immediately, with state offices closed Friday in observance of Alaska Day, marriages will not resume until Monday morning.