U.S. District Court Judge Timothy Burgess on Tuesday denied the state of Alaska's request for a stay in his decision overturning Alaska's same-sex marriage ban.
Burgess' denial means same-sex marriages in Alaska can continue, for the time being. The Alaska Department of Law moved quickly to challenge that decision, asking the 9th U.S. Circuit Court of Appeals hours later to issue an emergency stay in the case. An appeal in the case, which could potentially overturn the decision, will also be filed with the 9th Circuit. The state filed its notice to appeal the decision Monday.
The request, filed Tuesday evening, asks that the 9th Circuit allow a stay, which would halt same-sex marriages, because it is possible the court will rehear cases surrounding similar bans in Nevada and Idaho, or that another circuit court could rule in upholding a ban and cause a split in the courts.
The state also petitioned for "en banc" review, where an 11-judge panel in the 9th Circuit could possibly hear the case. That review is generally difficult to get, according to attorneys in the case, since a majority of 9th Circuit judges -- there are 29 -- must vote to even hear the case.
Same-sex marriages in Alaska began Monday, a day after Burgess ruled Alaska's same-sex marriage ban to be a violation of due process and equal protection clauses of the U.S. Constitution.
Burgess also issued a judgment in the case Tuesday, effectively finishing the case at the District Court level.
"(Burgess) is completely done, it's in the lap of the 9th circuit now," said Allison Mendel, one of three attorneys who represented the plaintiffs in Hamby v. Parnell, the case challenging Alaska's same-sex marriage ban.
Mendel said previous actions from the 9th Circuit indicate a stay from the court is unlikely. If a stay is denied at the 9th Circuit level, Alaska could appeal to U.S. Supreme Court Justice Anthony Kennedy, who oversees the jurisdiction. But based on recent actions, where the Supreme Court denied a similar stay for Idaho, she said that too is unlikely to succeed.
Alaska Dispatch Publishing