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.

Last Wednesday, the Supreme Court had ruled that the measure’s backers did not have a legal right to defend the measure in either the Supreme Court or, earlier, in the Ninth Circuit Court. While the Supreme Court considered that case, the 2010 decision by a federal judge in San Francisco striking down “Proposition 8” had been on hold. It was that hold (or “stay”) that the three-judge Circuit Court panel lifted on Friday. Very soon after that, gay and lesbian couples started getting married in ceremonies across the state. Thousands of such couples have now obtained marriage licenses from officials in the state.

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 lift 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.

Actually, what is occurring now in California is a resumption of such rights; there was a brief interval, before “Proposition 8″was passed and the court battle over it had begun, when gays and lesbians could marry. During that interval, some 18,000 couples took advantage. There were indications on Sunday that perhaps that number had already been exceeded since Friday, at least in the volume of new marriage licenses issued.

If there was some irony in Justice Kennedy’s action, it was that he was among the four dissenting Justices who would have allowed the measure’s backers to press their defense of the same-sex marriage ban. However, they had been out-voted, five to four.

Recommended Citation: Lyle Denniston, New same-sex marriage challenge fails, SCOTUSblog (Jun. 30, 2013, 12:21 PM), https://www.scotusblog.com/2013/06/new-marriage-challenge-fails/