What happens if Idaho or Nevada asks for a stay? Previously, the 9th Circuit (begrudgingly) stayed the Idaho District Court decision in Latta v. Otter. In his concurring opinion Judge Hurwitz cited what he saw was a “clear message” from the Supreme Court granting a stay in the Utah litigation:

On January 6, 2014, the Supreme Court granted the State’s application for a stay pending the disposition of the appeal in the Tenth Circuit. Herbert v. Kitchen, 134 S. Ct. 893 (2014). Although the Supreme Court’s terse two-sentence order did not offer a statement of reasons, I cannot identify any relevant differences between the situation before us today and Herbert. And, although the Supreme Court’s order in Herbert is not in the strictest sense precedential, it provides a clear message—the Court (without noted dissent) decided that district court injunctions against the application of laws forbidding same-sex unions should be stayed at the request of state authorities pending court of appeals review.

So has anything changed? Will the district court now deny  a stay in light of the Court’s decision to deny certiorari yesterday? If an opinion is issued (there may be none), does the court actually cite the order’s list (or at least the missing 33 pages) to note the Court lifted other stays?

I think yesterday’s order list changes everything. By issuing his order today , after the Court denied cert and lifted the stays, that “clear message” became very muddled. The district court will very likely not stop the order from going into effect “prompt[ly].” Good timing on Reinhardt’s part. It would have been a shame to issue an opinion, the district court lifts the stay, and the Supreme Court then promptly stays it. While the Court can’t catch them all, they would have known about this one.

In addition to the 1 in 1,000 shot that Reinhardt made it onto all three same-sex marriage panels, his clock management skills were remarkable. Recall in January 2011 the Prop 8 case he certified a question to the California Supreme Court, rather than deciding it that winter. The California Supreme Court heard arguments on September 6, and issued a decision on November 17. Then, the 9th Circuit issued its opinion on February 7, 2012. By certifying the case, an entire year was taken off the docket. Had the case been decided in the spring of 2011, a cert petition would have been filed a few months later, and arguments would be held during the fall of 2011, with a decision in the spring of 2012 (right around Obamacare time!). Even if en banc was sought, and denied, the case would have still been up in time for the OT 2011 term. But, sending it to the California Supreme Court ran an entire year off the clock. By then, public opinion had changed significantly–though not enough such that the Court rule on the merits.

Update: Here is a statement from Idaho Governor Butch Otter, referencing the “surprising” decision by the Court:

“Today’s decision by the 9th Circuit is disappointing, but not unexpected,” Otter said. “I will carefully evaluate the opinion, along with yesterday’s surprising decision by the U.S. Supreme Court, and talk with legislative leaders and the Attorney General before determining our path forward. The stay on same-sex marriage in Idaho remains in effect until we are directed otherwise by the 9th Circuit.” – See more at: http://www.washingtonblade.com/2014/10/07/ninth-circuit-strikes-marriage-bans-idaho-nevada/#sthash.FdRXbNxB.dpuf