After the Supreme Court refused to consider requests by several states to review rulings that quashed their bans on marriage equality, advocates of same sex marriage had reason to believe the court would recognize same sex couples as equal citizens. In fact, there was a flurry of legal efforts to strike down North Carolina’s ban on same sex marriage resulting from the Supreme Court’s decisions.
On Wednesday, Justice Kennedy threw a curve ball at marriage equality when he granted a request to stay a ninth circuit ruling that overturned similar bans in Nevada and Idaho. Adding to the confusion, Kennedy subsequently revised his initial order to exclude Nevada. According to SCOTUSblog, Kennedy revised the order because of “captions the Ninth Circuit had put on its order putting its decision into effect.”
In the end, the Supreme Court Justice made an error in the order. Think Progress explains:
A Supreme Court spokesperson admitted on Thursday that same-sex marriages were briefly halted in the state of Nevada due to an error in an order signed by Justice Anthony Kennedy. On Wednesday morning, Justice Kennedy issued an order temporarily staying a lower court’s decision requiring the state of Idaho to extend marriage rights to same-sex couples. Yet this stay order unintentionally listed a case number associated with a different case involving the state of Nevada. Thus, the order appeared to suspend marriages in Nevada, even though Nevada never asked the Court for a stay.
Late on Wednesday, The News Observer reported that U.S. District Court Judge William Osteen lifted a stay on the proceedings in two cases brought by the ACLU to challenge the marriage ban. According to WRAL, Osteen also dismissed all motions related to these cases.
Osteen also asked lawyers to submit documents telling the judge what actions they wanted him to take.
U.S. District Court Judge Martin Reidinger is considering whether the constitutional amendment violates the first amendment rights of North Carolina clergy who wish to perform marriage ceremonies for same sex couples.
Federal Judges in Asheville and Greensboro also have cases in hand that may nullify the constitutional amendment that defines marriage as “a union between a man and a woman.” Same sex couples across the state went to county offices to get marriage licenses in anticipation of an imminent nullification of the constitutional amendment.
After the Fourth Circuit ruled against bans on same sex marriage, North Carolina’s Democratic Attorney-General announced he would not continue to defend his state’s version of the marriage ban. The Republican President Pro Tem of the Senate, Phil Berg, and House Speaker Thom Tillis announced they would hire independent council and try to become parties to the lawsuit in defense of the marriage ban. In fact, Tillis who is also a Republican candidate for the U.S. restated his attentions during Tuesday’s debate with his Democratic opponent, Senator Kay Hagan.
Earlier on Thursday, Tillis filed the papers needed to intervene on behalf of marriage equality opponents.
While it’s hard to say what the Supreme Court plans to do next, there are a combination of factors that suggest it has little choice but to recognize that marriage equality is here to stay. More than half the states and DC recognize same sex marriages. The lower courts recognize it. While the Supreme Court has done everything but recognize same sex marriage, the fact is even one marriage equality’s most ardent opponents, Justice Scalia recognized it when he said,
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,
It’s time for the Supreme Court to officially recognize that marriage equality triumphed over homophobia. The developments in Idaho and Nevada alone show that the court’s indecision is in itself creating the sort of confusion that the Supreme Court is supposed to prevent. When a Supreme Court Justice is confused, as Kennedy appeared to be, imagine the impact it’s having on people whose lives are very directly affected by court decisions on marriage equality.