The Supreme Court, with two Justices dissenting, on Wednesday afternoon cleared the way for same-sex couples to marry in Kansas — the thirty-third state on the list. In a brief order, the Court voted to leave intact a federal judge’s order nullifying the state’s ban on same-sex marriages. There was no explanation, for the order or by the dissenters.
Because the judge’s ruling had been on hold only because of a temporary Supreme Court order issued Monday, the Kansas ruling took effect when the Justices’ new order lifted the earlier postponement. State officials are now under a federal court requirement to start issuing marriage licenses to same-sex couples.
The Court has issued a series of orders in same-sex marriage cases over the past eleven months, but the Kansas order marked the first time that members of the Court had recorded dissents. Justices Antonin Scalia and Clarence Thomas noted only that they would have granted the delay sought by the Kansas attorney general.
Kansas officials had attempted to show that their case was different from others that the Supreme Court had chosen to leave undisturbed, arguing that the federal judge’s order was an invalid attempt to second-guess a Kansas Supreme Court order delaying the issuance of same-sex marriages. The federal judge had rejected that claim, but it may have been the one that drew the implied support of Justices Scalia and Thomas.
The state still has an appeal pending at the U.S. Court of Appeals for the Tenth Circuit, but that has little promise, because that appeals court has struck down bans in two other states in its region — Oklahoma and Utah. The Supreme Court refused to review those Tenth Circuit rulings on October 6. The Kansas ban is almost identical to those in other states.
The Kansas plea for delay to the Supreme Court had been closely watched, since it was the first such request to go to the Court since a split developed in the federal appeals courts on the constitutional controversy over same-sex marriage. It is unclear whether that made any difference to the Supreme Court’s discussion of how to react to the Kansas case.
However, the new split in the courts of appeals might also have been a reason for the dissents by the two Justices.
The decision by the U.S. Court of Appeals for the Sixth Circuit, creating the split because it upheld same-sex marriage bans in four states, has not yet been appealed to the Supreme Court, but several petitions for review are expected to be filed in coming days, perhaps even later this week.
Reprinted with permission from SCOTUSblog.com.