The Supreme Court has issued an order denying the state of Alabama’s request for a stay of the federal-court order barring Alabama from enforcing its laws defining marriage as the union of a man and a woman. Justice Thomas’s dissent, joined by Justice Scalia, cogently explains why the Court’s denial of the stay is grossly irresponsible. (It’s possible—indeed, I would think likely—that one or two other justices also voted for the stay, but only Thomas and Scalia have made public their dissents from the denial.) Some excerpts (underlining added; some citations omitted):
When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review.…
It was thus no surprise when we granted a stay in similar circumstances a little over a year ago. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws.
This application should have been treated no differently. That the Court more recently denied several stay applications in this context is of no moment. Those denials followed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws. Although I disagreed with the decisions to deny those applications, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.
Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor. This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.