A divided Supreme Court on Friday steered clear of Florida’s same-sex marriage controversy, effectively opening the door for the marriages to begin Jan. 6.
Acting without written explanation, the court declined to keep in place a trial judge’s stay now set to expire Jan. 5. The court’s decision, with conservative justices Antonin Scalia and Clarence Thomas dissenting, means gay marriages can proceed in at least some parts of Florida even as the state appeals.
The Florida decision was not entirely unexpected, save for its timing, and it precedes the Supreme Court’s much bigger decision on ruling, once and for all, on whether the Constitution protects marriage rights for gay couples.
“There really is no good reason not to do it,” Evan Wolfson, the president of Freedom to Marry, said in an interview Friday. “Almost everybody on both sides is calling for them to decide.”
The Florida question came first.
In a 33-page opinion issued Aug. 21, Tallahassee-based U.S. District Judge Robert L. Hinkle struck down Florida’s ban on same-sex marriage and issued an injunction blocking its enforcement. Some confusion has clouded whether Hinkle’s ruling covers all of Florida’s 67 counties or just Washington County in the state’s Panhandle, where the challenge was brought.
The ban on same-sex marriage and its benefits had been challenged by a carefully selected group of sympathetic plaintiffs, including Sloan Grimsley, a firefighter-paramedic with the City of Palm Beach Springs, who married her partner, Joyce Albu, in New York.
“Ms. Grimsley and Ms. Albu are concerned that if something happens to Ms. Grimsley in the line of duty, Ms. Albu will not receive the same support the state provides to surviving opposite-sex spouses of first responders,” Hinkle noted.
Hinkle, appointed to the federal bench by President Bill Clinton, put a temporary stay on his order while Florida Attorney General Pam Bondi appealed. The 11th U.S. Circuit Court of Appeals declined to extend that stay beyond Jan. 5, spurring Bondi to ask the Supreme Court on Tuesday to retain the stay on Hinkle’s injunction.
“If Florida’s law is going to change in the substantial manner the injunction would require, it should happen only after the order undergoes appellate review,” Bondi argued. “The public interest is not served by on-again, off-again marriage laws.”
Bondi made the case to conservative Justice Clarence Thomas, who oversees appellate matters for Florida and other 11th Circuit states. Thomas, an opponent of same-sex marriage, referred the issue to the full court.
The full court, in turn, has been rejecting similar requests from other states seeking to retain bans on same-sex marriage pending appeals. In November, over the objections of Thomas and Scalia, the Supreme Court refused to keep stays in Kansas and South Carolina in place.
The first same-sex marriage licenses in those states were issued within hours after the high court refused to extend the stays.
“Recent experiences in numerous other states illustrate that states can quickly and effectively manage changes to their marriage laws pending and following litigation . . . with little if any difficulty,” attorneys for the same-sex Florida couples argued in a brief Thursday.
Looming in the background of the Florida case, but soon to reach the foreground, is the broader question of the underlying constitutional challenge to bans on same-sex marriage. For the Supreme Court, the question now appears unavoidable.
On Jan. 9, the justices will convene in a private conference to consider which cases will get full hearings next year. The stack of petitions awaiting them includes multiple challenges to same-sex marriage bans, with opponents as well as supporters of the restrictions agreeing that the court must act.
“Final resolution of the constitutional questions presented in the same-sex marriage debate is equally important to all citizens of this nation,” Kentucky Gov. Steve Beshear declared in a brief Dec. 9.
The nine justices ducked the issue in early October, when they declined without comment to hear same-sex marriage cases arising out of three appellate circuits. All three appellate courts had struck down marriage restrictions.
Since then, the legal landscape has changed.
On Nov. 6, the 6th U.S. Court of Appeals broke from the pack and upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The decision created a split in the circuits that all but demands resolution by the Supreme Court, to ensure the Constitution is applied uniformly across all 50 states.
The clock now becomes crucial.
The court often lists a case for consideration at multiple conferences. Sometimes, these re-lists can keep going for weeks. If a decision to hear the same-sex marriage cases isn’t made by the last conference, set for Jan. 23, the issue probably would have to be postponed until the next term, which starts in October 2015