Same-sex Marriage–The Next Step

James Hanley

James Hanley is a two-bit college professor who'd rather be canoeing.

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9 Responses

  1. Road Scholar says:

    If the circuit court upholds a ruling like this, what effect if any, does that have on other states in that circuit?Report

    • J@m3z Aitch in reply to Road Scholar says:

      All District courts are bound by their Circuit’s ruling. But that doesn’t mean the executive branches would necesarily start issuing marriage licenses right away. Someone might still have to sue in a district court to force the executive’s hand (usually the Secretary of State). But with a firm Circuit ruling, the District court could dispense with a full trial/hearing and issue a summary ruling.

      But also, county clerks in many states have some degree of autonomy, or at least initiative, and could respond to a favorable Circuit ruling on their own by starting to issue marriage licenses, leaving the Sec State or Attorney General or Governor to decide if it’s worth the trouble of trying to stop them.Report

      • Road Scholar in reply to J@m3z Aitch says:

        That’s sort of what I thought. Thanks for the clarification, prof!Report

      • Alan Scott in reply to J@m3z Aitch says:

        Actual experts feel free to correct me if I’m wrong, but:

        In this, case, circuit court precedent is unlikely to matter, because the ruling will almost certainly be stayed until a Supreme Court ruling.

        Of course, technically everything James says applies to a SCOTUS ruling just like it does to a ruling from the 10th circuit, but if the nine decide in favor of SSM, it’s unlikely that state-level executives will need any hand-forcing.Report

      • J@m3z Aitch in reply to J@m3z Aitch says:

        the ruling will almost certainly be stayed until a Supreme Court ruling

        Quite likely. But in this case I can see dome circuit court judges saying, “Ah, screw it; this is the most significant civil rights issue in decades, I’m not going to stay it, I’m going to make it difficult for SCOTUS to overrule me by letting marriages go on so its a fait accomopli.”


      • Alan Scott in reply to J@m3z Aitch says:

        Which is sort of what already happened at the district level in this case, as well as in Perry. But in each circumstance, SCOTUS itself overruled and stayed the ruling. I don’t see why that would be different if the 10th circuit rules in favor of Kitchen et al.Report

      • J@m3z Aitch in reply to J@m3z Aitch says:

        That would depend which Supreme heard the appeal for a stay, at least if any of them had the interest in the conservatives. Which I doubt any do. And for the record, a bit of googling tells me Sotomayor is assigned to the 10th.Report

      • Alan Scott in reply to J@m3z Aitch says:

        When the district Judge refused to stay his own order, that was also Sotomayor, and yet there’s a stay in Utah right now. My understanding is that even if Sotomayor doesn’t want to issue the stay, her denial of the petition can be appealed to the full court. (Which seems to have happened unofficially in the case of the district court ruling–rather than wait for the parties to appeal, Sotomayor just asked her fellow justices to vote on whether a stay should be granted)Report

      • J@m3z Aitch in reply to J@m3z Aitch says:


        Thanks for the further information. I hadn’t realized that had all happened.Report