United States Supreme Court Justice Sonia Sotomayor issued an order on Monday blocking same-sex marriage in Kansas after the Kansas Attorney General requested an injunction (read more in the Jurist at http://jurist.org/paperchase/) but the stay was lifted by the end of the week, making same-sex marriage legal in Kansas, despite the democratic process.
This flurry of legal rulings have followed several attempts to reserve regulation of domestic relations to the states in the face of federal decisions denying state regulation as unconstitutional. This latest request came after the Tenth Circuit ruled that state bans on same-sex marriage are unconstitutional, binding federal courts in this circuit by that ruling, and forcing Kansas into marriage redefinition accommodation. The Tenth Circuit decision was in conflict with a previous Kansas Supreme Court decision that upheld Kansas' definition of marriage. Read that decision blocking the issuance of marriage licenses to same-sex couples here. The High Court's intervention initially prevented the issuance of marriage licenses to same-sex couples in Kansas, but Wednesday night's lift of the stay now requires Kansas to do so. "The application for the stay contended that the federal judge's finding that same-sex marriage bans are unconstitutional interferes with the state supreme court's review and circumvents the state court's power," according to the Jurist. The stay was lifted by a 7-2 vote of the full Court, with Justice Scalia and Justice Thomas voting in favor of states rights.
Kansas, in an attempt to protect its rights, made heavy use of the United States Court of Appeals for the Sixth Circuit's decision last week which upheld marriage as a relationship between a man and a woman in Kentucky, Michigan, Ohio, and Tennessee. (See FamilyRestoration post on this at http://regentfamilyrestoration.blogspot.com/2014/11/marriage-upheld-by-federal-court.html.) The Sixth Circuit's ruling creates a split of authority for the first time among the federal appeals courts and increases the likelihood of the matter going to the Supreme Court, despite what happened with Kansas law.
The events of the past few weeks regarding federal intervention of state marriage have left the States themselves and much of the state of the law on marriage in flux and great confusion. This is significant because federalist constitutional principles leave the matters of domestic relations regulations to the states, as explained at http://ssrn.com/abstract=2462093. Strong families rely on good marriage policy that is clearly understood. With the High Court’s latest ruling forcing Kansas to issue marriage licenses to same-sex couples states are denied that power. A great deal of this legal uncertainty and disorder is based on the Justices not following their own ruling in Windsor v. United States that reiterated at least 29 times that states do indeed have the right to regulate marriage (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2462093), making the events of the last few weeks seem a bit more like political pressure than legal jurisprudence.