Some detail added on Thursday evening.
This week, two state judges in Travis County have issued orders indicating that Texas’s ban on same-sex marriage is unconstitutional, culminating in an order that permitted one license to be issued. (Here’s some collected coverage from KUT, our local NPR station.)
As that news story was blanketing local media this morning, the Texas attorney general was filing papers with the Texas Supreme Court requesting a stay of these Travis County rulings. The State’s motion was filed at 11:02am and asked the Court to issue immediate relief; I’ve uploaded a copy of the State’s motion. The Court issued a stay this afternoon, an order that the orders list document describes as granting the relief the AG has requested “in part.” Although the full text of the stay order is not (as I write this) yet on the Court’s website, you can get a sense of what “in part” means from the State’s request. The State requested the Court to stay both the temporary restraining order below and “all further state trial proceedings that seek to resolve the issues” of same-sex marriage or divorce. When we do see the order, I’d expect a formal stay of the order in this case but for the Court to stop short of actually “staying” other trial proceedings, some of which might not yet have been filed. [Update: Yes, here’s the stay order. It covers the specific restraining order below and does not mention other proceedings.]
There was speculation this afternoon about whether the marriage license already issued is valid. Chuck Lindell of the Statesman summarizes the AG’s press release about the stay, which suggests it is not:
AG Paxton statement: The same-sex marriage license … is void, just as any license issued in violation of state law would be.
— Chuck Lindell (@chucklindell) February 19, 2015
My understanding, having now read the State’s motion for emergency relief, is that the AG has not yet requested a ruling on that question. (The State’s formal “petition,” which is not yet online, might request broader relief.)
As a legal matter, this subtlety about whether the license was “void”, or merely issued in error, has implications for whether it can be challenged after-the-fact, and perhaps by whom. That same question is deeply entangled with the AG’s attempt to intervene in a 2010 case in which a different Travis County judge issued a same-sex divorce decree. That set of appeals is still pending; the State argues in its filings today that the Court should freeze these new Travis County orders at least until that prior appeal is disposed.
Those merits decisions have been slowed down by, presumably, the Texas Supreme Court waiting on some relevant US Supreme Court cases to first be resolved. (The three petitions are among the oldest pending cases at the Court.) With the US Supreme Court now expected to issue its next ruling on same-sex marriage by the end of June, I would expect the Texas Supreme Court to wait to see the outcome before deciding this issue with finality. We may, or may not, from the Fifth Circuit in the meantime.
Because the State is challenging two distinct orders, there are two docket numbers in the Court.
, No. 15-0135 : On Tuesday, the State filed a petition asking the Court to stay the first, more general order from a Travis County judge declaring Texas’s ban on same-sex marriages to be facially unconstitutional. Today, the Supreme Court granted that requested stay in full.
, No. 15-0139 : The second petition was filed Thursday morning, about two hours after a Travis County court issued a restraining order demanding the county clerk issue one specific marriage license. The Texas Supreme Court granted the stay request only “in part.” You can read the State’s motion for emergency relief to get a sense of the issues. As a bonus, that motion attaches most of the trial court filings from earlier today. I’ll post the text of the stay order when available.