Two groups of Florida same-sex couples, anticipating a chance to get married in less than three weeks, urged the Supreme Court today not to delay that opportunity.  The Court, they argued, should continue its recent refusal to interfere with lower court rulings that have nullified state bans on same-sex marriage.  Two briefs opposing a request by state officials for more delay are here and here.

As of now, a lower court order is in effect postponing a federal trial judge’s ruling in favor of such marriages until January 5.  The state has an appeal pending at the U.S. Court of Appeals for the Eleventh Circuit, but that court has refused to extend the order even though it has not yet ruled on the validity of Florida’s ban.

This particular dispute thus tests whether the Supreme Court will put off same-sex marriages in a state that is not yet under a federal appeals court decision striking down a state ban and setting a binding precedent for trial courts in the region, to give the appeals court for that area a chance to rule.

Since the Justices on October 6 refused to hear the first round of same-sex marriage cases that had unfolded over the past year or more, the Court has not imposed any delays on the opportunity for same-sex couples to marry even though the Justices themselves have yet to rule directly on the constitutional controversy.

A second round of same-sex cases has recently reached the Court, and it is now widely expected that the Justices will take their first look at those when they next meet for a private Conference, on January 9.   It now appears likely that the Court will agree to hear one or more of the new cases, because there is now a split in the federal appeals courts; there was no such division in early October, when the Court chose to remain on the sidelines for the time being.

The split occurred in early November when the U.S. Court of Appeals for the Sixth Circuit upheld bans on same-sex marriage in four states in its geographic area.  That is one of the two rulings in favor of state bans now being challenged at the Court; the other is a trial judge’s ruling upholding Louisiana’s state ban.

Florida officials have filed their plea for postponement with Justice Clarence Thomas, who handles emergency legal matters from the Eleventh Circuit, which includes Florida.  He has the option to either act alone or share the request with his colleagues.

One of the new briefs filed today, sensing that Justice Thomas, if acting alone, might grant the postponement request, argued that the issue should be decided by the full Court.  Justice Thomas has written an opinion, in another case, indicating that he has not gone along willingly with the Court’s preliminary actions on same-sex marriage in recent months.

The Florida couples contended that state officials should have to make a stronger case for delay, because the Eleventh Circuit itself has refused a delay even though it has not decided the state’s appeal.  The state has not made that case, the briefs asserted.

They argued that the Supreme Court has been well aware of the split in the federal appeals courts on the same-sex marriage issue, and yet has turned aside postponement requests in cases that have come to it more recently.   That, the couples said, indicated that the Court is willing to allow such marriages to occur even before the issue is settled once and for all.

The state has the option of filing a reply to the new briefs before Justice Thomas or the full Court acts.

 

 

Posted in Same-Sex Marriage Post-Windsor, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Florida couples oppose more delay on same-sex marriage, SCOTUSblog (Dec. 18, 2014, 6:44 PM), http://www.scotusblog.com/2014/12/florida-couples-oppose-more-delay-on-same-sex-marriage/