10/17 Update: 11:00. The state’s request for an emergency stay from the U.S. Supreme Court has been denied.
10/16 Update: 1:30pm. The Parnell administration has filed an application for stay with the U.S. Supreme Court. “Without a stay, Alaska citizens and officials will suffer irreparable harm,” Attorney General Geraghty writes in the appeal. You can read the full document HERE.
The U.S. Court of Appeals for the Ninth Circuit has issued a temporary stay on same-sex marriages in Alaska. The temporary stay is intended to give Gov. Parnell the chance to request a stay from the Supreme Court. Should the Supreme Court decline, the stay would be lifted at noon on Friday. The state’s request that the Ninth Circuit issue an emergency stay — which could halt proceedings for an indefinite period of time — was denied.
U.S. District Judge Burgess denied the state’s request for a stay, at the district level, on Tuesday. Attorney General Michael Geraghty offered Burgess two reasons supporting why the state believed a stay was warranted. First, he asserted that the suit challenging Idaho’s same-sex marriage ban — Latta v. Otter — would likely be reviewed en banc by the Ninth Circuit. That argument was a bit embarrassingly rendered moot when the Ninth Circuit decided to lift that state’s ban on same-sex marriage the following day. Second, Geraghty said that there was the reasonable likelihood of a split decision by one of the outstanding circuit courts entertaining suits about same-sex marriage bans. A similar argument was brought forth by Gov. Otter in Latta, to which the Ninth Circuit responded: “The existence of those pending cases, and the possibility of a future conflict, did not affect the Court’s decision to permit the marriages to proceed, and thus, Governor Otter’s argument that we should maintain the stay in order to await the results of cases pending in other circuits is unavailing.”
The Ninth Circuit told the state that they had until January 21 to appeal, and 30 additional days for the plaintiffs to file their response. No stay was issued at that point, meaning that same-sex couples were permitted to (and did) apply for marriage licenses. The Alaska Bureau for Vital Statistics amended marriage applications to contain gender neutral terms. Alaska has a three-day waiting period, but this was waived for three couples in Barrow and Ketchikan. One couple in Sitka, who had married in California, were told their license was now recognized in Alaska.
Meanwhile, opponents of marriage equality prepared for sky-fall.
Geraghty filed for an emergency stay, which if granted could serve to halt legal proceedings indefinitely.
“This motion presents an emergency, because it is in the public’s interest that it be resolved prior to Thursday, October 15, 2014,” Geraghty wrote. “That way, should a stay be issued, it does not result in the difficult issues that would arise should there be a small window in which marriages occur, only to later be stopped as a result of a stay or other change in the law.”
Lawyers for the plaintiffs in Hamby v. Parnell filed their opposition to an emergency stay, saying that it would “substantially injure other parties and it is not in the public interest.” Ironically (and cleverly), they heavily relied on the Ninth Circuit’s rulings in Latta and SmithKline, stating that “in light of the clear binding precedent in this Circuit, Defendants’ likelihood of success is virtually nonexistent” and that this was “regardless of possible, or even pending, Supreme Court Review.”
Governor Otter has announced there would be no further appeal.
Wednesday, the Ninth Circuit denied the state’s request for an emergency stay, but granted the motion for a temporary stay, set to expire on Friday at noon (though there would be no marriages upon expiration, as Friday is a state holiday and courts will be closed). The stated purpose for the temporary stay is to “afford appellants an opportunity to seek a stay from the United States Supreme Court.”
The decision was made by a three-judge panel, comprising Circuit Court judges O’Scannlain, Berzon, and Bybee. Judge Diarmuid O’Scannlain, a Reagan appointee who serves in Portland, Oregon, noted that he would have preferred granting the emergency stay, citing Kitchen v. Herbert, the case that ultimately struck down the same-sex marriage ban in Utah. In Kitchen, the U.S. Supreme Court issued a stay 18 days after marriage equality was recognized; over nine hundred same-sex couples who had married in between found themselves in legal limbo for over three months. The Tenth Circuit eventually affirmed the decision in June of 2014, and the Supreme Court declined to review that decision earlier this month. Coincidentally, the lead plaintiff family in Alaska’s suit challenging the state’s ban — Matt Hamby and Chris Shelden — were among those couples married in Utah at the time.
In 2011, O’Scannlain alleged that District Judge Virginia A. Phillips “misused her authority when she struck down” Don’t Ask Don’t Tell, according to SCOTUSblog (and the ruling). O’Scannlain also asked for an en banc panel review of SmithKline, after the three judge panel, in his words, applied “heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.”
Whether or not the Supreme Court may issue a stay is unknown, but their actions to refuse the review of other cases and lift the stay in Latta would suggest a predilection to refrain. Also unknown is whether the Ninth Circuit would oblige a review subsequent to the state’s briefs, required by January 21. But, as adeptly articulated by the plaintiffs’ counsel, should the circuit court commit to such a review, it would be bound to its own precedent. This narrows any hopes of light at the end of the long, laborious, and curious tunnel the state continues to navigate, to the financial tune of “No comment.”