Vowing to come back soon with a plea for the Supreme Court to take on the basic constitutional issue of state power to ban same-sex marriages, state officials in Alaska on Thursday asked the Court in the meantime to delay lower court orders that would allow such marriages beginning on Friday.
The application (Parnell v. Hamby, docket 14A413) seeks a postponement pending final action in the U.S. Court of Appeals for the Ninth Circuit, where the state has filed an appeal. The request was filed with Justice Anthony M. Kennedy, who handles emergency legal pleas from the geographic area of the Ninth Circuit, which includes Alaska. Kennedy can act on his own, or refer the request to the full Court.
The Court so far has not agreed to review the constitutionality of any state’s same-sex marriage ban, and its most recent actions have been to turn down state requests for postponements of lower-court decisions against such bans. It has given no indication when, or if, it will take on the nationwide controversy.
For Alaska, a federal judge in Anchorage last Sunday found its ban to be unconstitutional. To try to keep that decision from going into effect, state officials asked the Ninth Circuit to delay the decision. On Wednesday, a three-judge panel put off the judge’s ruling, but only until 3 p.m. (Eastern time) on Friday, to allow the state to ask the Supreme Court for a delay.
Thus, if Justice Kennedy or the full Court do not stay the trial judge’s ruling, gay and lesbian couples would be free to seek marriage licenses, and wed. If that happens, Alaska would become the thirtieth state in which such marriages are legally permitted.
State officials used some of the same arguments for delay in the Alaska case that Idaho officials had used, unsuccessfully, in attempting to get a delay in their case. Both contended that the Ninth Circuit was out of step with other federal appeals courts in using a more demanding constitutional test in judging gay rights cases, and that should make a case from the Ninth Circuit a stronger candidate for Supreme Court review than the seven petitions the Justices turned down on October 6.
Alaska told the Justices that, if it does not get the Anchorage judge’s opinion overturned in the Ninth Circuit, or if it does not get the Ninth Circuit to grant initial en banc review, it will return to the Supreme Court to ask the Justices to take on the controversy without waiting for its Ninth Circuit appeal to play out.
Although the four federal appeals courts that have so far reviewed state bans on same-sex marriage have each agreed to nullify such bans, the Alaska application argued that a split among appeals courts could soon develop, which would then put it up to the Court to step in to resolve the disagreement.
The Fifth, Sixth, and Eleventh Circuits either have heard or will hear later cases on the validity of same-sex marriage bans in a total of seven states.
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