What a difference two days can make. Monday morning we had marriage equality in 19 states. Monday's nonruling expanded that number to 30. By the time Tuesday's ruling from the 9th Circuit Court of Appeals striking down marriage bans in Idaho and Nevada filters out to Alaska, Arizona, and Montana, we will have marriage equality in 35 states and the District of Columbia.
If this was all a secret plan by opponents of equality it doesn't seem to be going very well. Chris Geidner at BuzzFeed has some interesting thoughts on the end game.
If an appellate court does decide to uphold a marriage ban — whether it comes from the 6th Circuit or a later decision — Justice Anthony Kennedy, as the presumed key vote on the issue, would now have a solid list of 35 to 39 states to put behind an opinion reflecting “the evolving understanding of the meaning of equality.”
What’s more, given that only four votes are needed to grant certiorari in a Supreme Court case and given that none of the seven petitions before the court this past week could garner those four votes, it’s entirely possible that the justices — on both sides of Kennedy’s view — know that Kennedy controls the board at this point.
The more conservative justices may believe — likely correctly — that granting certiorari in one of the cases on Monday probably would have resulted in a Kennedy opinion striking down all the remaining bans across the country. With that concern in their mind, it’s possible that they didn’t want to risk it. It’s possible that some of the justices — notably, Chief Justice John Roberts — could wish, if such is a decision is inevitable, that it come with more states already on the side of marriage equality before being handed down.
And the more liberal justices may believe — likely correctly — that even if they could win now, that Kennedy would be more comfortable with such a decision if they could have a case come to them with more states on the marriage equality side of the ledger. It’s possible other justices — including Ruth Bader Ginsburg and Stephen Breyer — would be in agreement with him on that point.
In other words, when the Supreme Court decided not to decide Monday, the court effectively sketched out the end game for the marriage equality movement.Meanwhile Monday's nonruling left the stays on Florida's marriage equality rulings on shaky ground.
The ACLU of Florida asked a federal judge in Tuesday to lift his stay and immediately allow gay marriage in Florida.
“In light of yesterday’s pathbreaking development, Plaintiffs respectfully submit that the Court should lift the stay immediately,” ACLU lawyers wrote to U.S. District Judge Robert L. Hinkle, based in Tallahassee, who on Aug. 21 ruled Florida’s gay-marriage ban unconstitutional.
Hinkle said in August he would stay his ruling until after “the U.S. Supreme Court resolves the pending applications, at that time, from Utah, Oklahoma and Virginia,” according to Howard Simon, ACLU of Florida’s executive director.
On Monday, the U.S. Supreme Court settled the gay marriage issue in Utah, Oklahoma and Virginia, along with Wisconsin and Indiana, when it announced justices would not hear appeals in federal court decisions allowing same-sex marriages in those states.
And of course Bondi is still being a toad.
Florida Attorney General Pam Bondi said through a spokeswoman that her office opposes lifting the stay.
“As noted on page one of the plaintiffs' motion, we do not consent to the resolution sought in the motion,” spokeswoman Jennifer Meale said. “We will respond within the appropriate time.”Some people never change but societies certainly do.
I have no idea why the court would clear 5 marriage equality stays on Monday and then issue a new one for a seemingly identical case on Wednesday. Justice Kennedy, you confuse and worry me.