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Justice Kennedy postpones Idaho gay weddings following appeal

WASHINGTON DC -- In another head-scratching decision from the U.S. Supreme Court, Justice Anthony Kennedy today granted Idaho's Hail Mary move to temporarily halt the beginning of gay weddings.

Without explanation, Kennedy put on hold the order from the Ninth Circuit Court of Appeals in San Francisco, California that mandated that same-sex marriages begin today in Idaho and Nevada, based on a ruling made Tuesday.

Idaho's anti-gay Gov. Butch Otter -- who has the gayest name of any governor in America -- and his Attorney General filed the last-minute notice with Justice Kennedy, who holds jurisdiction over the Ninth Circuit.

Kennedy ordered that the parties involved in the Idaho case to respond by 5 pm EDT Thursday, Oct. 9.

Idaho argued, among other things, that it was not prepared to begin issuing marriage licenses to gay and lesbian couples today.

As a result, gay and lesbian couples will not be able to marry today through at least 5 pm EDT Thursday.

Why Kennedy did what he did is anybody's guess. Considering that on Monday the high court let a whole string of gay-marriage rulings in appellate courts to stand, this comes are another surprise. But it may simply be a "take a deep breath, slow down, and let's get our paperwork in order" kind of move by Kennedy, who is considered the swing vote on the ideologically split court.


Freedom to Marry tweets: "It's unclear exactly what will happen with #marriage in #Nevada today; temporary #SCOTUS stay in #Idaho case may apply to NV."

However, SDGLN went to the SCOTUS website and found only one order from Kennedy, and it applied only to Idaho.

See the photo image at the top left.

Lambda Legal later tweeted: "...we don’t believe stay order should apply to NV & have asked #SCOTUS for clarification. Stay tuned."


The esteemed SCOTUS Blog wrote this today:

With same-sex couples in Idaho legally free to seek marriage licenses this morning, state officials filed a last-minute plea to the Supreme Court to delay that opportunity. The plea came hours after the U.S. Court of Appeals for the Ninth Circuit had struck down Idaho’s ban on gay and lesbian marriages, and then had put its ruling into immediate effect.

The filing said that the state had asked the Ninth Circuit to put its ruling back on hold so that it could be challenged before the en banc Ninth Circuit and, later, before the Supreme Court. The request was submitted to Justice Anthony M. Kennedy, who handles emergency filings from the geographic area that includes Idaho. He has the option either of acting alone or of referring the request to the full Court.

In their application, Idaho officials argued that their case, if it gets to the Supreme Court, is narrower in scope than the other same-sex marriage cases that the Justices had refused to review on Monday. The questions it would raise are only preliminary to a return of the case to the Ninth Circuit, the document argued.


OK, it's clear now that Justice Kennedy had a brain fart this morning. He issued a second order today to clarify that he did not mean to imply that Nevada was included in his earlier order.

Check out the order in the photo at the bottom left.

It made absolutely no sense for Kennedy to stop gay marriage in Nevada since no standing party objected to same-sex weddings. Only the homophobic Governor of Nevada was objecting.

And last, but not least, Jon W. Davidson, Legal Director and Eden/Rushing Chair at Lambda Legal, weighed in:

“As we had hoped, the Supreme Court has clarified this morning’s order and explained that there is no stay of the Ninth Circuit’s mandate as to Nevada. The temporary stay applies only to Idaho. We are delighted and hope officials in Nevada will continue to move quickly, as they had been, to start issuing marriage licenses to same-sex couples.”