On Monday at 9:30 a.m., without any fanfare, the Court denied petitions for certiorari, thereby lifting stays on judgments the 4th, 7th, and 10th Circuit Courts of appeals. (Only 6 weeks earlier, at least 5 Judges had voted to stay the 10th Circuit decision, and weeks before that, the 4th Circuit decisions.) Later that day, Colorado became the first state to allow same-sex marriages, as its Supreme Court dismissed a pending appeal and stay it had previously entered. Likewise, Virginia began offering same-sex marriage licenses. Judges in North Carolina and West Virginia requested more information before lifting their stays. South Carolina and Wyoming announced they would continue to defend the bans. Kansas denied a same-sex couple from obtaining a marriage license.
On Tuesday afternoon, Judge Reinhardt, writing for a 9th Circuit panel, invalidated the same-sex marriage bans in Idaho and Nevada. Rather than following the normal course of letting a mandate issue, and allowing the parties to seek en banc review, or petition for certiorari, Reinhardt ordered the District Courts in Idaho and Wyoming to “prompt[ly]” life their stays. Sometime on Tuesday afternoon, the 5th Circuit granted a motion to expedite their own same-sex marriage appeal. The 9th Circuit issued the mandate around 7:51 ET, ordering that the mandate “takes effect this date.” About an hour later, the Nevada Governor and AG said that the state would “take no further action on this matter.” There was a report that the state would begin issuing marriage licenses Wednesday at 2:00 p.m. As late as 10:30 ET, Idaho AG released a statement to Chris Geidner that “We are still reviewing the decisions and orders issued today by the 9th U.S. Circuit Court of Appeals. It’s still too early to know fully what the decision and orders mean for Idaho and how the state will proceed.” At this point, Idaho was weighing a petition for rehearing en banc, or a petition for certiorari. But, because the 9th Circuit issued the mandate immediately (very unorthodox), it was stuck.
Now, we turn to Wednesday. Lyle reports in the wee hours of Wednesday morning, Idaho filed papers with the 9th Circuit–3:30 a.m. ET for the state, and 5:00 a.m. for the Governor–asking for the mandate to be recalled, or to put the petition before the en banc court, or to put the mandate on hold pending a Supreme Court appeal. The 9th Circuit did not act on that motion and, “early in the day Wednesday,” Idaho filed an emergency application for a stay to Circuit Justice Kennedy. They ask Justice Kennedy that absent a stay, they would have to begin issuing marriage licenses to same-sex couples at 10:00 ET.
At 9:47 a.m. ET (with 13 minutes to spare), Justice Kennedy orders that the 9th Circuit’s mandate is stayed “pending further order of the undersigned or of the Court.” He further ordered that a response be filed before 5:00 p.m. on October 5. Perhaps most importantly, Justice Kennedy’s orders referred not only to the 9th Circuit’s docket numbers concerning the Idaho law (which was being appealed), but also the Nevada law (which was not being appealed). This order had the effect of placing on hold Nevada’s decision to issue marriage licenses. Because the 9th Circuit issued only one mandate for both cases, Justice Kennedy stayed that mandate, implicating both states. So, as this order stood at 9:47 a.m., gay marriages would not proceed in Idaho and Nevada. Lyle reports that Lambda Legal lawyers “asked for a clarification” of the order.
At some point on Wednesday morning (exactly what time is unclear), Nevada District Court Judge Robert C. Jones, who had previously upheld Nevada’s same-sex marriage ban, *recused* rather than lift the stay and let gay marriages proceed in Nevada. No explanation was given for the recusal. (I will write more about this later, and will avoid any commentary here). Around 4:22 ET on Wednesday, the case was reassigned to Judge James Mahan.
Then, on Wednesday around 3:00 p.m., Justice Kennedy issued a revised order, limiting the stay on the mandate to the Idaho cases, but not Nevada. This order, which begins, “upon further consideration,”reinstated the 9th Circuit’s mandate as to the Nevada law, but left the stay as to Idaho in place.
A response is still due 5:00 p.m. on Thursday. Who knows what will happen next! (If I am missing anything or got some facts wrong please post a comment. The past 3 days have been a blur).
Update: Lyle reports that after I submitted this post, there were even more developments:
FURTHER UPDATE 5:51 p.m. Reacting to Justice Kennedy’s order, the Ninth Circuit recalled its orders implementing its Tuesday decision on the Idaho ban, and called for briefs on whether it should also do so on its order on the Nevada case. The new order is here. However, it did not order a stop to same-sex marriages in Nevada in the meantime. In addition, an advocacy group opposed to same-sex marriage filed an application asking Kennedy to postpone the Ninth Circuit decision as it applied to Nevada.