Gay marriage 3As reported, the ACLU will immediately file papers asking the federal judge handling same-sex marriage cases here to invalidate the state’s ban and allow marriages to go forward.

For quick context on the the Supreme Court’s inaction today and what it means in North Carolina and elsewhere, see this VOX explainer.

And for more detail, read this post by Lyle Denniston at SCOTUSblog on how the ruling will unravel in affected states and what’s on the horizon that might push the Supreme Court to take a marriage equality case and rule on the issue.

As they say on the live blog, here’s Lyle:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks.  If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court.   Almost no one had expected that to happen.

It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact.  Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.


Voter IDNearly 48 hours had passed since the Fourth Circuit ruled that certain provisions of the state’s new voting law — namely the elimination of  same-day registration and the prohibition on counting out-of-precinct ballots — likely violated Section 2 of the Voting Rights Act and shouldn’t be implemented for the coming election.

And U.S. District Judge Thomas B. Schroeder had still not entered the required order blocking those provisions.

Plenty of other activity had followed.

The Fourth Circuit refused to stay its decision pending an appeal to the U.S. Supreme Court, forcing the state to file an emergency application to the nation’s highest court seeking that stay.  And Chief Justice John Roberts, who handles emergency applications from this circuit, told the voting law’s challengers they had until Sunday at 5 p.m. to file papers opposing that stay.

But inexplicably, Judge Schroeder still hadn’t entered the order the Fourth Circuit directed him to enter “as swiftly as possible.”

That seeming intransigence led to an emergency request this morning by the law’s challengers, asking the appeals court to bypass Judge Schroeder and enter the order blocking the challenged provisions itself, saying that Schroeder had no intention of following the terms or the spirit of the Fourth Circuit decision.

Here’s an excerpt from that request:

Then, later on October 2, 2014, the District Court requested a telephonic status conference at 9 A.M. on October 3, 2014, to discuss “the court’s authority to enter an injunction.” Shortly after that conference was scheduled, Mr. Farr, attorney for the State, emailed the District Court’s clerk and all counsel to inform the Court that Defendants had filed an emergency stay application with the Supreme Court, and that responses were due on Sunday, October 5, at 5 P.M. At 8:46 A.M. today, the District Court then cancelled the conference, and asked the parties to “keep it informed of any appellate filings that may affect its authority to act as to these cases.” It is clear that the District Court does not intend to follow the direction of this Court.

Shortly after that filing, an order from Schroeder blocking enforcement of the specified provisions appeared on the docket.

Next move?


voteThe same three-judge panel of the 4th U.S. Court of Appeals which yesterday blocked state provisions eliminating same-day registration and prohibiting the counting of out-of-precinct ballots refused today, by a 2-1 vote, to stay its ruling pending an appeal to the U.S. Supreme Court.

The court’s order is here.

And as expected, the state shortly after asked the U.S. Supreme Court to step in and stay the 4th Circuit ruling.

A copy of the state’s emergency application is here.

That makes two states now with emergency applications for stays in voting rights cases now pending at the nation’s highest court. Earlier today the American Civil Liberties Union asked the Supreme Court to block Wisconsin’s voter ID law from taking effect for the election next month.



Supreme courtThe Supreme Court issued its first order list of the term this morning, with no decision yet on the seven pending same-sex marriage petitions.

The Court did take 11 new cases though, including a housing discrimination case out of Texas, a redistricting case out of Arizona and a campaign finance case out of Florida.

The housing case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., raises the question of whether disparate impact claims can be asserted under the Fair Housing Act.  It is the third such case the Court has taken in the past three years. The two previous cases settled before the justices could rule on the “disparate impact” question — Mt. Holly in 2013 and  Magner v. Gallagher in 2012.

The redistricting case, Arizona State Legislature v. Arizona Independent Redistricting Commission, involves that state’s use of a commission (as opposed to its legislature) to adopt congressional districts.

And the campaign finance case, Williams-Yulee v. The Florida Bar, asks whether a state judicial conduct rule prohibiting judges from personally soliciting campaign funds violates the First Amendment.

As  Adam Liptak noted in Sunday’s New York Times, writing about judges on the campaign trail:

Thirty of the states that elect judges ban such personal requests. Every state supreme court to address the bans has said they are justified by the need to protect the integrity of the judiciary and public confidence in the judicial system.

But federal appeals courts are split on the issue. Four of them, collectively covering 23 states, have struck down solicitation bans. In May, for instance, the United States Court of Appeals for the Ninth Circuit, in San Francisco,struck down Arizona’s ban, at least as applied to candidates for judicial office who are not yet judges.

This is not a concern in North Carolina, however, because the code of judicial conduct here expressly allows judges to personally solicit campaign funds.