Unsurprisingly, Justice Anthony Kennedy has denied an emergency bid to halt the same-sex marriages that had resumed in California on Friday after the 9th Circuit Court of Appeals had lifted its stay:
Supreme Court Justice Anthony M. Kennedy turned down at midday Sunday a request to stop same-sex marriages from occurring in California. Without comment, and without seeking views from the other side, Kennedy rejected a challenge to action by the Ninth Circuit Court on Friday implementing a federal judge’s ruling allowing such marriages. The plea had been made on Saturday by the sponsors of California’s “Proposition 8,” a voter-approved measure that permitted marriage only between a man and a woman.
(…)
Since Justice Kennedy offered no explanation for denying an application claiming that the Ninth Circuit panel had no authority to lift its stay, there is no way to know what legal rationale he had used. It could have been that the sponsors of the measure lacked a legal right to pursue their challenge further, that even if they had such a right it was without legal merit, that the lower court did have the authority to decide for itself when to life the stay, or perhaps that events had just moved too rapidly in the wake of the Supreme Court ruling that it would be inappropriate to try to roll them back.
Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state. California is the thirteenth state where same-sex marriages can occur now, or soon, when new laws in a few of the states take effect this summer. The District of Columbia also allows such marriages.
As I noted yesterday, there was virtually no chance that Kennedy would grant this request to begin with, so there’s no surprise here. Theoretically, the Prop. 8 proponents could file a Motion to Reconsider, but there’s really no chance that such a motion would have been granted. This case is, effectively, over.
