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SCOTUS Issues SSM Stay in Kan.: Weirder Than Flying Monkeys in Oz

By William Peacock, Esq. on November 10, 2014 | Last updated on March 21, 2019

Update: it turns out the stay was much ado about nothing. The stay was lifted Wednesday afternoon. More on the order, and the two sides' arguments, can be found at FindLaw's Courtside.

Justice Sonia Sotomayor has just issued a stay blocking same-sex marriages in Kansas, right around the time a district court's ruling striking down the state's ban on gay marriages was about to take effect. The order is a surprise, considering that since the Court declined to take on gay marriage earlier this term, it has refused to issue stays in numerous other same-sex marriage appeals.

We have to imagine that the plaintiffs' lawyers feel like the witch who got crushed by Dorothy's house in Oz, as this came out of nowhere. What gives? And what else is odd about this SCOTUS stay?

First Stay Since the Denials

As noted above, this is the first time since the October denials that the Court has granted a stay in a same-sex marriage appeal. Before the batch of denials, the Court was routinely granting stays pending appeals. But since then, the Court has repeatedly denied stays, even while the appeals were pending.

Something, then, must be unique about this case, especially since it was a liberal justice who issued the stay (without referring it to the larger Court).

First Since the Sixth Circuit Upheld Bans

One possible, yet unlikely, explanation is the out-of-circuit decision from the Sixth Circuit upholding gay marriage bans in four states. Kansas' petition cited and attached the Sixth Circuit's opinion, reports SCOTUSblog.

And yet, this would be an odd vehicle for reviewing that circuit's opinion, especially since appeals of the Sixth Circuit's one-of-a-kind holding are likely to be filed within a week's time.

Unique Issue of Federalism

What seems to us to be more of an interesting issue, and one that is specific to this case, is the state-federal parallel appeals problem.

Kansas argued that the federal district court should've left the matter to the state court. The federal court, bound by precedent, issued a semi-conflicting ruling: The Kansas Supreme Court had previously issued a stay blocking same-sex marriages, while the district court's order struck down the ban entirely, which had the opposite effect, reports SCOTUSblog.

"By disregarding the pending efforts of the Kansas Supreme Court to address the issue of same-sex marriage, the preliminary injunction order [issued by the federal judge] ignored the principle of comity," the Kansas filing said. "No federal court should intervene to interrupt that adjudicative process."

24 Hours to Respond

Sotomayor's stay order doesn't give the plaintiffs much time to respond. The order calls for a response by 5 p.m Tuesday, or approximately 24 hours after the stay was issued. The stay is pending that response and any further order from Sotomayor or the Court as a whole.

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