The state of Alaska asked for an emergency stay from U.S. Supreme Court Justice Anthony Kennedy Thursday in the hope of appealing a decision overturning Alaska's same-sex marriage ban.
The state appealed to Kennedy, who oversees emergency appeals in western states including Alaska, a day after the 9th Circuit Court of Appeals issued a stay temporarily halting same-sex marriages in the state.
The state asked Kennedy to issue a stay on the order by U.S. District Court Judge Timothy Burgess overturning Alaska's same-sex marriage ban. Burgess found the Alaska constitutional amendment -- approved by voters in 1998 -- to be in violation of the due process and equal protection clauses of the U.S. Constitution. Couples began applying for marriage licenses Monday in the hope of marrying Thursday morning. With the stay in place, marriages are halted.
In a filing with the Supreme Court Thursday, the state asked Kennedy to issue a stay of the ruling pending the 9th Circuit considering an appeal of the case. Earlier in the week, Alaska filed a notice of appeal with the court, hoping to overturn the U.S. District Court judgment.
The state also noted in its filing that it intends to seek "en banc" review from the 9th Circuit Court of Appeals, essentially skipping the normal three-judge panel and asking for 11 judges to consider the case.
ACLU of Alaska Executive Director Joshua Decker said the state is unlikely to get that review.
"It's a hard to go straight from trial court to an 11-judge en banc court," Decker said. "It's very uncommon."
Decker said just petitioning for en banc review does not guarantee it. A majority of the circuits 29 judges must agree to hear the case in order for it to proceed. En banc hearings can overturn the typical three-panel judge decisions at the circuit court level.
The filing marks the latest in a week of complicated legal back and forths regarding same-sex marriage. Alaska asked for an emergency stay at the District Court level, which was denied by Burgess Tuesday. The state then petitioned the 9th Circuit for a full stay; however, the court only allowed a temporary stay until 11 a.m. Friday to allow the state time to file an appeal with the U.S. Supreme Court.
Alaska Dispatch Publishing