Same-Sex Marriage Licenses in Five New States Could Be Available This Afternoon

By Josh Eidelson
October 06, 2014 - Businessweek

Now that the Supreme Court has announced it won’t hear appeals to lower-court rulings that legalized same-sex marriage in Utah, Oklahoma, Virginia, Wisconsin, and Indiana, lawyers say they expect those states to start issuing marriage licenses to gay couples right away.

That could mean as soon as this afternoon, but certainly by the end of the week, says Lambda Legal Marriage Project Director Camilla Taylor, who represents the plaintiffs in one of the cases. Others agree. “I’d be willing to bet that marriages start happening tomorrow, if not today,” attorney Roberta Kaplan wrote in an e-mail. Kaplan successfully argued against the federal Defense of Marriage Act before the Supreme Court in 2013.

The structure of rulings stayed in the Fourth, Seventh, and Tenth Circuits pending a decision from the Supreme Court means that it’s just a question of how quickly local clerks start issuing paperwork. “All of the stays were conditional, and so all of the stays have been lifted” automatically now that the high court has declined the cases, Taylor says. Formal mandates from each of the circuit courts making explicit that same-sex marriages can proceed should come within hours, she predicts. (The Tenth Circuit has already issued such a mandate.)

“There may be individual [marriage] clerks who say, ‘Oh, well, we’re not ready,” says Taylor. But, she says, “there’s no legal justification for waiting—once the mandate issues, they’re required to comply.” Some aren’t even waiting that long: Milwaukee County Clerk of Courts Joseph Czarnezki says his office will start giving out licenses right away. “There is nothing preventing us from proceeding,” he told Bloomberg News.

Another six states—North Carolina, South Carolina, West Virginia, Colorado, Wyoming, and Kansas—that weren’t party to the cases but fall under the jurisdiction of the same circuit courts may also begin issuing licenses to same-sex couples in the coming weeks. “Whether we’re talking about weeks or days is unclear, but the continued justification for excluding same-sex couples from marriage in these states has been demolished,” says Taylor. “It no longer exists. So it’s a matter of these courts getting their procedural I’s dotted and T’s crossed so that they can issue rulings in accordance with what the Supreme Court and their Circuit Courts of Appeal have done already.” If that happens, the number of states with legal same-sex marriage will reach 30, along with Washington, D.C.