Supreme Court wraps up eventful first week

UPDATE: The Supreme Court issued a brief two-sentence order late Friday afternoon denying a request by Idaho officials for an emergency stay in its marriage protection case. The order, which offered no explanation or any dissenting opinions, also lifted Justice Anthony Kennedy’s order issued Wednesday to temporarily delay same-sex marriage in the state. The 9th U.S. Circuit Court of Appeals is expected to react quickly to today’s Supreme Court order, which would pave the way for same-sex marriages to begin in Idaho.

Meanwhile, U.S. District Judge Max Cogburn ruled late Friday that North Carolina’s amendment defining marriage as between one man and one woman is unconstitutional, allowing same-sex marriages to begin immediately in that state. Cogburn based his decision on the 4th Circuit’s ruling on marriage in Virginia.

OUR EARLIER REPORT (11:14 a.m. EDT): October is starting to feel like June. The U.S. Supreme Court continued its first week in session with drama that it usually reserves for the end of its term, redefining state marriage laws without issuing an opinion. At the beginning of the week, same-sex marriages were legal in 19 states, and now they are legal in 27. That number will likely rise to 35 when lower courts begin enforcing the circuit courts’ precedents in all the states under the appellate courts’ jurisdiction.

The Supreme Court issued a flurry of orders and stays on marriage laws this week, sparking new briefs, stays, orders, and recusals in lower courts. On Monday, the Supreme Court rejected seven appeals of rulings in favor of same-sex marriage, effectively legalizing marriage in the five states that lost appeals and likely another six under the lower courts’ jurisdiction.

On Tuesday, the 9th U.S. Circuit Court of Appeals ruled that laws defining marriage as between one man and one woman in Idaho and Nevada unconstitutional. But on Wednesday, Justice Anthony Kennedy halted same-sex marriages in those states in an emergency order. The order was confusing because the Supreme Court had signaled on Monday that it would allow lower courts to legalize gay marriage piecemeal.

Then on Thursday, the Supreme Court admitted that Kennedy had made a mistake and had meant to only halt same-sex marriages in Idaho. State officials in Nevada had decided not to defend their marriage protection law, and the private defenders of the law on Thursday withdrew from the case. Idaho officials had requested an emergency stay, and Kennedy asked for a brief by Thursday night.

The ripples of the court’s Monday decision continued. On Thursday, West Virginia’s governor and attorney general said they would no longer defend the state’s marriage protection law, allowing same-sex marriages to begin. That decision may be based more on a sense of futility than principle: West Virginia falls within the 4th Circuit’s oversight, where the Supreme Court declined an appeal of the circuit court’s decision striking down Virginia’s marriage protection law.

For now laws defining marriage as between one man and one woman remain in place in North Carolina and South Carolina, two other states in the 4th Circuit’s jurisdiction, but judges there have asked for additional briefings and seem likely to strike down the laws in the coming weeks. North Carolina’s attorney general announced in July that he would no longer defend the state’s marriage protection amendment, but GOP leaders in the legislature have asked a judge to allow them to defend it.

The 5th Circuit and the 6th Circuit have more conservative judges and will rule on marriage cases in the near future. If either of those circuits rule in favor of marriage protection laws, the Supreme Court would be much more likely to take a case. The high court often takes cases when circuit courts disagree on an issue. Justice Kennedy would probably be a swing vote on legalizing same-sex marriage nationwide if it came before the high court, but he seems likely to rule in favor of it.

More news from the Supreme Court

The Supreme Court, after limiting a Voting Rights Act provision on state voting laws in 2013, allowed a challenged portion of North Carolina’s voter identification law prohibiting same-day voter registration and votes from the wrong precinct to go forward, reversing lower court orders. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. Then Thursday night the court ordered a block on Wisconsin’s voter ID law, with Justices Antonin Scalia, Samuel Alito, and Clarence Thomas dissenting on the grounds that the concerns with the law weren’t severe enough to warrant an injunction before an election.

Also this week, Notre Dame University filed a long-awaited appeal of its contraceptive mandate case at the Supreme Court. Notre Dame was one of the only nonprofit groups not to win a preliminary injunction against the mandate, and outside observers wondered whether the university had derailed its own case.

Notre Dame lost at the 7th U.S. Circuit Court of Appeals earlier this year and has been complying with the mandate under protest since the beginning of the year. Legal experts were befuddled when the university didn’t appeal to the Supreme Court following the 7th Circuit’s ruling, when Wheaton College had already won an emergency injunction from the high court. The delay in filing at the Supreme Court followed a string of questionable strategic choices on the school’s part.

Regardless of Notre Dame’s slowness to file at the Supreme Court, the school has insisted that it remains committed to its case.

Meanwhile, Notre Dame announced Thursday that it would provide benefits to married same-sex couples.