throbber
1
`
` Cite as: 574 U. S. ____ (2015)
`
` THOMAS, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
`_________________
`No. 14A840
`_________________
`
` LUTHER STRANGE, ATTORNEY GENERAL OF
`
` ALABAMA, v. CARI D. SEARCY, ET AL.
`
`
`
`ON APPLICATION FOR STAY
`
` [February 9, 2015]
` The application for stay presented to JUSTICE THOMAS
`
`and by him referred to the Court is denied.
`JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
`
`
`dissenting from denial of the application for a stay.
`
`The Attorney General of Alabama asked us to stay a
`
`federal injunction preventing him from enforcing several
`provisions of Alabama law defining marriage as a legal
`union of one man and one woman pending our considera-
`tion of Obergefell v. Hodges, No. 14–556; Tanco v. Haslam,
`
` No. 14–562; DeBoer v. Snyder, No. 14–571; and Bourke v.
`
`
`Beshear, No. 14–574. Those cases are scheduled to be
`argued this Term and present the same constitutional
`question at issue here: Whether the Fourteenth Amend-
`ment requires States to recognize unions between two
`people of the same sex as a marriage under state law.
`
`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. See, e.g., Herbert v. Kitchen,
`571 U. S. ___ (2014); see also San Diegans for Mt. Soledad
`Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006)
`(KENNEDY, J., in chambers) (staying an injunction requir-
`ing a city to remove its religious memorial). Although a
`
`stay is not a matter of right, this practice reflects the
`particularly strong showing that States are often able to
`make in favor of such a stay. Because States are required
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`2
`
`
`STRANGE v. SEARCY
`
` THOMAS, J., dissenting
`
`
`to comply with the Constitution, and indeed take care to
`do so when they enact their laws, it is a rare case in which
`a State will be unable to make at least some showing of a
`likelihood of success on the merits. States also easily meet
`the requirement of irreparable injury, for “‘[a]ny time a
`State is enjoined by a court from effectuating statutes
`enacted by representatives of its people, it suffers a form
`
`
`of irreparable injury.’” Maryland v. King, 567 U. S. ___,
`
`___ (2012) (slip op., at 2–3) (ROBERTS, C. J., in chambers)
`(quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox
`Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in cham-
`bers)). The equities and public interest likewise generally
`weigh in favor of enforcing duly enacted state laws.
`
`It was thus no surprise when we granted a stay in simi-
`lar circumstances a little over a year ago. See Herbert v.
`Kitchen, supra. Nor was it a surprise when we granted a
`
`stay in similar circumstances less than six months ago.
`
`McQuigg v. Bostic, 573 U. S. ___ (2014). 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 applica-
`tions in this context is of no moment. Those denials fol-
`lowed 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, Armstrong v.
`Brenner, ante, p. ___; Wilson v. Condon, ante, p. ___; Moser
`v. Marie, ante, p. ___, 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
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`3
`
`
`
`
`
` Cite as: 574 U. S. ____ (2015)
`
` THOMAS, J., dissenting
`
`
`Alabama is thus in an even better position than the appli-
`cant 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 pre-
`serve the status quo pending the Court’s resolution of a
`constitutional question it left open in United States v.
`Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). 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.
`
`Today’s decision represents yet another example of this
`
`Court’s increasingly cavalier attitude toward the States.
`Over the past few months, the Court has repeatedly de-
`nied stays of lower court judgments enjoining the en-
`forcement of state laws on questionable constitutional
`
`grounds. See, e.g., Maricopa County v. Lopez-Valenzuela,
`574 U. S. ___, ___ (2014) (slip op., at 2) (THOMAS, J., joined
`by SCALIA, J., respecting denial of application for stay)
`(collecting cases). It has similarly declined to grant certio-
`rari to review such judgments without any regard for the
`people who approved those laws in popular referendums or
`elected the representatives who voted for them. In this
`case, the Court refuses even to grant a temporary stay
`
`when it will resolve the issue at hand in several months.
`
`I respectfully dissent from the denial of this application.
`
`
`I would have shown the people of Alabama the respect
`they deserve and preserved the status quo while the Court
`resolves this important constitutional question.

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