UPDATED Monday 11:28 a.m. The application has been docketed as 14A19. The Court has now switched its numbering system for filings to the October Term 2014. This post also has been updated to reflect the current situation in Pennsylvania.

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Arguing that the Supreme Court has made clear that it does not want any same-sex marriages to go forward until it gets a chance to rule on the constitutionality of state bans, a county clerk in Pennsylvania has asked the Court to put a stop to those marriages in her state. The plea by Theresa Santai-Gaffney, the Schuylkill County clerk, also seeks the right to pursue her challenge even though lower courts excluded her.

The same-sex marriage situation in Pennsylvania at this stage is similar to that in other states where a ban has been struck down in court, but state officials declined to appeal to get it reinstated. The Court has once moved in to temporarily ban such marriages, in Utah, and the Schuylkill County clerk asked it to do so in Pennsylvania.

The clerk’s application (not yet assigned a docket number) was filed on Friday with Justice Samuel A. Alito, Jr., who handles requests for temporary legal action in the geographic area of the U.S. Court of Appeals for the Third Circuit, which includes Pennsylvania. Alito has the authority to act on his own or to share action with his colleagues.

The clerk argued that the Supreme Court had “signaled to all lower federal courts” that they must act “to preserve the enforcement of man-woman marriage laws” until the Court itself takes on the issue. That, her application contended, is the meaning of the Court’s January order putting on hold temporarily a federal judge’s decision striking down the ban in Utah.

The Court, however, acted in that case only on the Utah situation, and even then did not explain its reasoning for the postponement. It issued that order at the request of Utah state officials. The Court in early June refused to issue a similar postponement of a ruling against Oregon’s ban, but that application was filed by a private organization opposed to same-sex marriage, not by Oregon state officials, who have refused to defend the ban there.

A federal judge in Harrisburg in May ruled that the Pennsylvania ban is unconstitutional, and refused last month to allow the Schuylkill County clerk to intervene so that she could appeal that decision. The judge sharply lectured the clerk about her continuation of the fight. On Thursday, the Third Circuit, acting summarily, barred her from the case and dismissed her appeal, saying it was doing so “for essentially the reasons” given by the district court judge. (A summary decision is made without written or oral arguments.)

Her challenge can go forward only if Justice Alito or a Supreme Court majority allows her to intervene, and postpones the decision nullifying the ban. Justice Alito has the option of seeking a response from challengers of the Pennsylvania ban before acting on the clerk’s application.

The following paragraph has been updated to reflect the current state of marriage licensing in the state, based on information from readers and the public record. Under orders from state officials, county clerks throughout Pennsylvania — including the Schuylkill County clerk — have been issuing marriage licenses on the basis of the lower court rulings on the challenge. That goes far toward making Pennsylvania the nineteenth state in which the issue of same-sex marriage is settled; only if the Supreme Court steps in at this point would that situation change.

Bans in other states have been struck down in federal or state courts, but those decisions are on hold while appeals go forward.

Recommended Citation: Lyle Denniston, Plea to stop same-sex marriages in Pennsylvania (UPDATED), SCOTUSblog (Jul. 7, 2014, 12:04 AM), https://www.scotusblog.com/2014/07/plea-to-stop-same-sex-marriages-in-pennsylvania/