Justice Kennedy Denies Emergency Challenge To Marriage Equality In California

Opponents of marriage equality were outraged this weekend after the Ninth Circuit Court of Appeals lifted its stay on the injunction against Proposition 8, allowing same-sex marriages to resume in California, but their attempts to block more nuptials has failed. Both Protect Marriage, the group that advanced and defended Prop 8, and the National Organization for Marriage issued press release alerts condemning the “lawlessness” that was taking place because the Ninth Circuit didn’t wait 25 days for the Supreme Court’s decision to be finalized.

Then on Saturday, the Alliance Defending Freedom helped Protect Marriage file an emergency motion (read the original filing) to block same-sex marriages from resuming in California. The Circuit Justice responsible for the Ninth Circuit who would thus handle this motion is none other than Justice Anthony Kennedy. In a swift action with no additional comment, Kennedy denied the motion on Sunday, allowing the marriages to continue.

Though the Supreme Court did not rule on the merits of Proposition 8, it was Kennedy who wrote the decision overturning the Defense of Marriage Act. He didn’t specify a rationale for his rejection to Protect Marriage’s motion, but SCOTUSblog suggests numerous plausible explanations beyond his assumed support for marriage equality. For example, the Court ruled that the proponents of Prop 8 did not have legal standing to appeal the original decisions, so it follows that they would similarly have no standing to file this motion.

Further, the Supreme Court’s decision on Prop 8 did not actually address the merits of the Ninth Circuit’s stay. In fact, it invalidated everything that happened at the appellate level. Even if there are technical rules about a waiting period for the decision to become final, because of the way it was written, it has no bearing on what the Ninth Circuit could do in the meantime in relation to its own previous actions. In other words, the Ninth Circuit was free to lift the stay whenever — and it did.


Once again, opponents of marriage equality have failed to prevent the freedom to marry in California.