Is the question moot?

Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.

This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.

I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.

But this seems a dodge when litigation is already pending and when the district court already has entered an injunction prohibiting enforcement of this particular law. The point of Obergefell is to make clear that the district court decision and injunction both were correct. It seems appropriate to allow that declaration about Nebraska law and that injunction (which, as I have argued, only affects the plaintiff couples anyway) to take effect in light of Obergefell. Otherwise, wouldn't most cases become moot after many GVRs?

Of course, this just may be one more way in which marriage-equality litigation is unique. We have multiple states with identical laws all being challenged at the same time by plaintiffs seeking to engage in identical conduct, with one Supreme Court decision resolving the constitutional of every law in every state as to all possible sets of facts. That is not true of all constitutional litigation.

Thoughts?