Over the protest of Alaska Governor Sean Parnell, who vowed to undertake what appeared to be a futile appeal, U.S. District Judge Timothy M. Burgess issued a surprise marriage equality ruling on Sunday, October 12, in Hamby v. Parnell, 2014 U.S. Dist. LEXIS 145876, 2014 WL 5089399 (D. Alaska), apparently reacting quickly to the 9th Circuit’s decision in Latta v. Otter. Burgess held a hearing on October 10 and told the parties that he would issue a ruling “soon,” but nobody was expected a Sunday ruling just two days later. Burgess made his injunction effective immediately, and the state’s Bureau of Vital Statistics announced marriage license applications could be filed on Monday morning, October 13. Alaska’s marriage laws provide that licenses are not issued until three days after the application is filed, and a marriage cannot be performed until a license is issued. However, couples already married in other jurisdictions won immediate recognition for their marriages, and there were news reports that some judges were willing to waive the waiting period and performed weddings on the 13th.
The state announced on October 13 that it would appeal the ruling to the 9th Circuit, and filed a motion with Judge Burgess seeking a stay. The state’s argument was that there was a “reasonable likelihood” that the 9th Circuit would rehearing Latta v. Otter en banc, and that there was a “reasonable likelihood” that “a circuit split will develop in the near future, leading to review by the Supreme Court of the important issue of whether state traditional marriage laws violate the Constitution. For these reasons, the law on which the district court grounded its opinion would continue to be in rapid flux over the next several months, and thus the Court should stay its decision avoid chaos in the administration of Alaska’s marriage laws pending ultimate resolution of this fundamental issue.” In light of the 9th Circuit’s order allowing its marriage equality decisions to go into effect in Nevada and Utah (see above), these arguments were non-starters. Judge Burgess denied the motion, but a three-judge panel of the 9th Circuit temporarily stayed the decision on October 15, giving the state until noon on Friday, October 17, to obtain a stay from the U.S. Supreme Court. However, on October 17 the Supreme Court denied the stay, and Judge Burgess’s decision went into effect. The state subsequently filed a motion with the 9th Circuit seeking an en banc hearing of its appeal, essentially contending that the issue of same-sex marriage should be reargued on the merits before an expanded panel of the circuit.