With two Justices dissenting, the Supreme Court on Thursday refused to delay same-sex marriages in South Carolina, leaving intact a federal judge’s order that goes into effect at noon and strikes down the state’s ban. Neither the Court nor the dissenters gave any explanation.

The order continued the Court’s pattern in recent weeks of refusing to delay lower-court orders nullifying state bans on same-sex marriages, at least when a federal appeals court had also refused to issue a postponement. Justices Antonin Scalia and Clarence Thomas dissented Thursday, as they had previously.

In asking for a delay, South Carolina officials had tried to persuade the Court that their case was different. The case did raise before the Court, for the first time, the question of whether federal courts are barred from ruling on “domestic relations” disputes — an issue recently raised by some scholars, and then picked up by lawyers for states for use in same-sex marriage cases. Such an exception to federal court authority has been recognized before by the Supreme Court, but it is not clear that the exception applies to marriage cases. No lower court has applied it to deny itself the authority to rule on same-sex marriage.

That new argument by South Carolina apparently did not make a difference to the outcome Thursday. That state now becomes either the thirty-fourth or thirty-fifth state to permit same-sex marriages; Montana is the other state that appears to be nearing the point of allowing marriage licenses to same-sex couples, after a federal judge’s ruling in that state on Wednesday. State officials in Montana have the option of asking for a delay during an appeal; on Wednesday the state filed a notice that it is appealing the case to the U.S. Court of Appeals for the Ninth Circuit.

However, because Thursday’s Supreme Court order in the South Carolina case was confined solely to declining to postpone the federal judge’s order, and was not a ruling on the validity of that order, that issue could come up again if the Court agrees in coming weeks to review any case raising the basic question of state power to ban same-sex marriages.

So far, the Court has denied review of appeals courts’ rulings that overturned state bans, but the Justices will soon confront four new petitions seeking to challenge a federal appeals court decision that upheld such bans — a decision by the U.S. Court of Appeals for the Sixth Circuit, in favor of bans in four states.

Recommended Citation: Lyle Denniston, Same-sex marriages can go ahead in South Carolina, SCOTUSblog (Nov. 20, 2014, 10:16 AM), https://www.scotusblog.com/2014/11/same-sex-marriages-can-go-ahead-in-south-carolina/