Wednesday morning, Justice Anthony Kennedy offered another thin ray of light to penetrate the hidden laboratory where he and his fellow justices will decide whether to recognize the Constitution’s promise of equality for all Americans. In a brief order that offers no explanation for his reasoning, Kennedy halted Tuesday’s decision by the United States Court of Appeals for the Ninth Circuit ordering the state of Idaho to extend full marriage rights to same-sex couples. Kennedy’s order stays the Ninth Circuit’s decision “pending further order of the undersigned or of the Court.”
It’s important not to overread the significance of this order. It is common, when a lower court issues an order that the justices have not had time to fully consider, for a single justice or the full Court to temporarily halt the lower court’s decision until the Supreme Court has had time to examine it. Nevertheless, Wednesday’s order from Justice Kennedy suggests that, whatever the Court intended to accomplish when they denied review in several marriage equality cases on Monday and effectively legalized same-sex marriages in much of the country, they are not yet ready to get out of the way completely and allow equality to flourish in all fifty states.
As the order’s language suggests, Kennedy may now either act on Idaho’s request for a more lasting stay himself, or he can refer the matter to the full Court. Should the full Court ultimately decide not to grant the stay, that will be a revealing sign that marriage discrimination is on its final legs.
The Ninth Circuit’s ruling addressed both Idaho and Nevada, so there was concern that Justice Kennedy’s stay would apply to Nevada as well. Wednesday afternoon he issued a second order clarifying that the stay only applied to Idaho — not Nevada. Same-sex couples might begin marrying there before day’s end.