The U.S. Court of Appeals for the Eleventh Circuit moved on Wednesday to put on hold any same-sex marriage case already awaiting review there or to be appealed later, with no action until after the Supreme Court rules on the constitutional controversy. In nearly identical orders issued on pending appeals from Alabama and Florida, the Eleventh Circuit acted on its own to hold the cases “in abeyance.” The orders are here (Alabama) and here (Florida).
The Eleventh Circuit has refused to delay same-sex marriages in either of those states, even though it had not yet decided appeals from each state by state officials. Federal trial judges have nullified both states’ bans. The Supreme Court is currently considering a plea by Alabama officials to postpone such marriages there. (An earlier post discussing the Alabama plea to the Supreme Court has been updated, and can be read here.)
In its Wednesday orders putting aside at least temporarily any marriage case. the Eleventh Circuit also said that it would do the same if it receives an appeal on the constitutionality of the same-sex marriage ban in Georgia — the remaining state in its region. A challenge to the a ban in Georgia has not yet been tried in federal district court, and no effort has yet been made to seek an early appeal to the Eleventh Circuit.
On January 16, the Supreme Court agreed to rule on state power to ban same-sex marriage and to refuse to recognize existing same-sex marriages. It is expected to hold a hearing on four cases, appealed from the U.S. Court of Appeals for the Sixth Circuit, in late April, and to decide them by late June or early July.
After the Supreme Court rules on the controversy, lawyers involved in the Eleventh Circuit cases are to inform that court on whether there are, at that point, any remaining issues to be decided.
Other federal appeals courts that have yet to rule on same-sex marriage cases in the current round of decisions at that level– the First, Fifth and Eighth Circuits — have so far given no indication that they are going to put existing appeals on hold.