I lost count of how many district court judges read Lawrence and Windsors as unmistakeable evidence that the Supreme Court wanted lower courts to invalidate bans on same-sex marriage. Even though both decisions specifically went out of their way not to address that issue. I don’t think those were unreasonable conclusions. In fact, I think that was a reasonable conclusion, especialyl in light of Justice Scalia’s sky-is-falling dissents (which were cited with glee by the lower courts). District judges often have to follow the lead set by the Supreme Court, and make inferences on how they would decide similar issues. Sometimes it isn’t clear, but that’s why judges get paid the big bucks. That’s the way things work.
But not when it comes to something as mundane as a stay to maintain the ex ante status quo. A federal district judge in Colorado has invalidated Colorado’s ban on same-sex marriage. But, he refused to grant a stay of his ruling, and only put the judgment on hold till the Court of Appeals rules on it.
I’m not sure if the Judge is knowingly putting his head in the sand, or wishes instead to flaunt some Article III chutzpah, but I’m not buying what Lyle charitably referred to as a “gentle chiding of the Supreme Court”:
Based on the most recent stay [in Evans v. Herbert], it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.
Let me deconstruct this line by line. First, the Court’s stay in Evans v. Herbert is about as clear as the Supreme Court could have done under the circumstances (It wasn’t going to weigh in on the merits of the issue). At the time, I thought it abundantly clear that lower courts should stay all rulings. Second, it doesn’t take a “haruspex” (someone who reads the future in animal entrails) to know that the Court wants to minimize the disorder caused by not staying the rulings. The Justices will resolve this case definitively sooner rather than later. Third, the message is not “subtle.” In two high-profile cases, almost immediately, the Court has instructed the lower court what to do. Fourth, this is a bizarre notion of the “rule of law,” where district judges usurp the direction of the Supreme Court.
Let’s hope the 10th Circuit has enough sense to grant a stay.