I don’t need to regale you with the rapid pace at which the federal courts, the 10th Circuit in particular, has resolved the same-sex marriage appeals (Chris Geidner has a great overview). At every juncture, the court has repeatedly declined stays, even after the Supreme Court effectively told them to do so. The issue had to move forward, to the Supreme Court, as soon as possible, with marriages happening during the interim. But now, that cert petitions are pending before the Court, the 10th Circuit has decided to put things on hold.
This morning at SCOTUSBlog, Lyle wrote that RBG suggested that she doesn’t think the Court should be in a hurry to grant cert on any of the cases, in the absence of a Circuit Split (the eyes of the world are on you Judge Sutton). But now, comes an update:
UPDATED 6:03 p.m. The Supreme Court may be poised to start acting on the same-sex marriage controversy, although the post below casts some doubt on that. It now appears that some lower courts will not go ahead with other cases while they await the Justices’ action. On Thursday afternoon, the U.S. Court of Appeals for the Tenth Circuit put on hold a pending appeal by the state of Colorado, with the delay in that case to continue until the Supreme Court acts on two prior rulings by that court striking down other states’ same-sex marriage ban. Colorado’s ban has been nullified by a federal trial judge. In asking that the state’s appeal be “held in abeyance,” the state’s attorney general noted that the two Tenth Circuit marriage cases had now reached the Supreme Court
The order is really brief:
This appeal is abated pending further order of this court. The deadline for the appellant’s opening brief will be established when the abatement of this appeal is lifted. The parties shall notify this court within 10 days of a decision on the petitions for writ of certiorari pending before the Supreme Court of the United States in Kitchen v. Herbert, Supreme Court No. 14-124, and Bishop v. Smith, Supreme Court No. 14-136. It is further ordered that the parties shall file status reports 30 days from the date of this order if no decision on the pending writs has been issued by that time.
All the sudden, things can wait. But what will be of the Coloradans who are stuck? Until that stay is lifted, there can be no same-sex marriages.
Now, this stay may be due to a newfound concern for judicial economy. Or, they may be gently nudging the Court in the direction of granting cert now. Let’s see if other circuits adopt this approach. Maybe the 6th Circuit can just put their opinion on hold, pending the resolution of the cert petitions. Now that would be a minimalist way of handling the case–don’t issue an opinion!