Supreme Court Refuses To Block Same-Sex Marriages In Florida

More interesting developments from the Supreme Court on what has been one of the biggest legal stories of 2014.

Same Sex Marriage Supreme Court

In yet another interesting development in the manner in which it has handled same-sex marriage cases, the Supreme Court has denied a request for a stay from the State of Florida of a ruling striking down that state’s ban on same-sex marriages, which means that same-sex weddings will be allowed to proceed in the Sunshine State beginning on January 6th:

Same-sex marriage will begin Jan. 6 in Florida — the U.S. Supreme Court on Friday evening denied Florida Attorney General Pam Bondi’s request to Justice Clarence Thomas that he extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples.

“The application for stay presented to Justice Thomas and by him referred to the Court is denied,” the Supreme Court announced Friday night, allowing Florida to become the 36th state, plus the District of Columbia, to recognize same-sex marriage.

In a statement Friday night, Bondi conceded: “Tonight, the United States Supreme Court denied the State’s request for a stay in the case before the 11th Circuit Court of Appeals. Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage. Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”

The case, however, isn’t over. Legal arguments haven’t been heard before the 11th Circuit, which hasn’t ruled on the merits of the case.

Also still unresolved: whether clerks in the state’s 67 counties will adhere to the federal court ruling that declared Florida’s gay-marriage ban unconstitutional. The law firm representing the clerks’ association has warned them they could be in violation of Florida law if they issue same-sex marriage licenses before the U.S. Supreme Court settles the issue.

What was clear Friday night is that the Supreme Court refused to extend U.S. District Court Judge Robert L. Hinkle’s stay allowing same-sex marriage to be recognized in Florida on Jan. 6.

“The Supreme Court ruled 7-2 in favor of allowing the injunction to go into effect after Jan. 5,” said attorney Stephen F. Rosenthal of the Miami law firm Podhurst Orseck, who is working with the ACLU of Florida in the case of eight same-sex couples and a Fort Myers widow seeking to have their out-of-state marriages recognized in Florida.


On Aug. 21, Hinkle of Tallahassee ruled in favor of the couples, throwing out the gay-marriage ban in Florida’s Constitution — approved by 62 percent of voters in 2008 — calling it “an obvious pretext for discrimination.” He stayed his ruling until Jan. 5, giving Bondi time to appeal.

Bondi appealed the case to the 11th Circuit Court of Appeals in Atlanta, which has jurisdiction over Florida, Georgia and Alabama. The appeal hasn’t been heard, but on Dec. 3, three 11th Circuit judges denied Bondi’s request to extend the stay. Bondi this week turned to Thomas, who oversees the 11th Circuit. On Friday night, the high court issued a two-sentence denial of Bondi’s request, noting that justices Thomas and Antonin Scalia would have granted it.

According to the ACLU, once the stay is lifted, Florida must recognize all same-sex marriages performed out of state.

“Every same-sex couple that has been married in another state or another country will have their marriage recognized, and they will qualify for the benefits with marriage: health insurance, pensions, all the practical benefits that come with marriage,” Simon said. “That will happen 12:01 on Jan. 6.”

Also, same-sex couples will now be eligible for Social Security benefits, which are dependent on state laws, Simon said.

“We expect public officials in all of Florida’s 67 counties to understand the significance of this development and look forward to full implementation of Judge Hinkle’s decision across our state,” ACLU of Florida attorney Daniel Tilley said in a statement.

Still not known: Which Florida clerks will issue marriage licenses to gay and lesbian couples.

Top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks, has advised them that only the clerk in Washington County, in rural North Florida — named in Florida’s federal gay-marriage lawsuit — would be bound by Hinkle’s ruling. All other Florida clerks who are not parties in the lawsuit could face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000” if they went ahead and married same-sex couples, according to Greenberg Traurig.

Just before the Supreme Court ruled on the stay Friday night, Greenberg Traurig’s Miami-based co-president, Hilarie Bass, told the Miami Herald that the firm supports same-sex couples’ right to marry but made its recommendation to clerks based on Florida law.

South Florida clerks have been vague as to whether they would issue licenses to same-sex couples beginning Jan. 6.

This unresolved question of the legal obligations of the County Clerks that are not party’s to the lawsuit at issue in the appeal will, no doubt, be the subject of immediate future litigation but it would appear that the Florida Attorney General’s Office would prefer that there be uniformity on the issue across the state, so we may end up seeing a ruling from that office that all of the County Clerks in the state are governed by Judge Hinkle’s order notwithstanding the determination made by Greenberg Trauig. In any case, the result here is interesting in several respects, not the least because what it might suggest about how the Court will handle the same-sex marriage cases before it from the Sixth Circuit Court of Appeals, which remains the only Circuit Court of Appeals in the country to uphold bans on same-sex marriage. Prior to yesterday, for example, the Justices had been routinely denying requests for stays in these cases, but each of these requests was coming from states where the governing Circuit Court of Appeals had already ruled that state bans on same-sex marriage were unconstitutional. In those  cases, then, you could say that the Court was merely acting consistent with its previous decision to let those rulings stand. In this case, the Court was dealing with a request for a stay from a state in a Judicial Circuit, the 11th Circuit, where there is presently no Circuit Court ruling on the issue at all. Given that, one might have expected that the Court would have granted a stay pending a ruling from the Circuit Court. The fact that it didn’t do that but instead is allowing marriages to go forward, with the full knowledge that the Justices themselves must soon decide how to handle the Sixth Circuit cases is, at the very least, potentially another sign that the expectation among the Justices at this point is that those cases, if they are accepted, will result in a ruling striking down same-sex marriage nationwide.

Lyle Denniston attempts to posit a reason for the Justices action as well:

In refusing the request by Florida officials, the Court followed the pattern that it had maintained for the past two-and-a-half months of routinely turning aside requests to put on hold lower court rulings that had struck down state bans on same-sex marriage.

This one appeared to be different from the others in two respects.  First, there was no need for an immediate postponement because the trial judge who nullified the Florida ban had put his decision on hold until January 5.  Second, the federal appeals court that presides in the geographic region that includes Florida — the U.S. Court of Appeals for the Eleventh Circuit — has yet to rule on the validity of that state’s ban.

In prior cases since early October, the Court had turned down requests for delays where the federal appeals court for a given region had found unconstitutional at least one ban in a state within that circuit, thus setting a precedent apparently binding throughout that area.  The Eleventh Circuit is preparing to take up the Florida case early next year.

It is unclear whether either of those differences in the Florida case had shaped the Justices’ response.  It could be that the most likely explanation was that the Justices who voted to deny the postponement were simply showing respect for the choice made by the Eleventh Circuit, which also had refused to delay same-sex marriages in Florida, even though it has yet to rule on the merits of the issue.

The Supreme Court’s refusals to delay same-sex marriages despite state officials’ requests have come even though the Justices are clearly aware that federal appeals court are divided on the constitutional question, and even though it is highly likely that the Justices will take up the constitutionality of state bans, and probably will do so during the current Term.  So far, though, the Justices have not ruled directly on the validity of any state’s ban.

Marriages are occurring now in most of the thirty-five states where state laws or court rulings allowed it, or where courts had acted to strike down state bans.  When the Court took its first actions during the current Term on same-sex marriage — denial of review on October 6 of bans in five states — only nineteen states and the District of Columbia allowed such marriages.

As I’ve said before, trying to posit what the Justices are thinking in situations like this is always a risky proposition, Perhaps Denniston is correct that the Justices have simply decided to defer to the 11th Circuit, which declined to issue a stay to Judge Hinkle’s ruling when presented with the opportunity. Of course, that action by the 11th Circuit is interesting in itself due to the fact that one of the criteria for deciding on whether or not a stay should be granted is whether it is likely that the petitioner, in this case the State of Florida, would succeed on the merits. While there doesn’t appear to be any detailed opinion from the 11th Circuit on the stay request, the fact that the stay was denied suggests strongly that the Judge’s who considered the request did not believe that it was likely that Florida would succeed in its argument that the state’s ban on same-sex marriage is Constitutional. While that doesn’t mean that Florida will ultimately lose on appeal in the 11th Circuit, I’m sure that the Florida Attorney General’s office is taking that as a harbinger of just what’s likely to happen to their appeal in this case.

In any case, this is yet another sign of how the judicial winds have changed on this issue in just the past year. A year ago, the Supreme Court was granting the stay against same-sex marriages in Utah. Now, it is denying the same request from Florida while the nation wait to see how they handle the four cases from the Sixth Circuit (which you can track here, here, here, and here by the way). Given how 2014 has gone in this area of the law, 2015 promises to be very interesting indeed.

FILED UNDER: Law and the Courts, Supreme Court, US Politics, , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. michael reynolds says:

    Ah, the sweet silence of the comments thread on gay marriage. We’ve gone from the GOP thinking this was a winner of an issue to secretly hoping the Supremes take it off the table permanently. We’ve gone from California Prop 8 – the anti-gay high water mark – to complete surrender in what, 6 years?

  2. @michael reynolds:

    It’s quite interesting how the debate has quieted down so quickly, although I suspect public interest in the topic will take an up-tick if and when the Supreme Court accept the appeals in the Sixth Circuit cases.

  3. michael reynolds says:

    @Doug Mataconis:

    It’s going to be fun watching the GOP candidates tap-dance around in this in Iowa and New Hampshire. Jeb, Christie, Paul and Walker will play the “federalism” card, Cruz, Santorum, Carson and whoever else shows up to play for the mental patients will of course rail on. Santorum will be calling for a constitutional amendment.

    And that will be the last cycle where gay marriage is mentioned.

  4. michael reynolds says:

    Oh, and not to forget Carly Fiorina who is apparently in the game as the candidate Republicans turn to when they realize they’re facing a 10 point gender gap. Because random inexperienced female candidate with a resume full of failure worked so well in 2008.

  5. Gustopher says:

    @michael reynolds:

    And that will be the last cycle where gay marriage is mentioned.

    I’m pretty sure that’s what people thought about abortion in the early 1970s. They will shift to “respecting religious objection” for a while, try to get carve outs for clerks and such, and attack it that way.

    Still, it is amazing how fast this has changed from almost unspeakable to accepted.

  6. de stijl says:

    @michael reynolds:

    Because random inexperienced female candidate with a resume full of failure worked so well in 2008.

    Michelle Bachman ran in 2012 not 2008.

    ; -)

  7. Mu says:

    I think Caribou Barbie will always be the lowpoint, even Michelle Bachman can’t erase that memory.

  8. CS says:

    As long as the GOP 2016 model clowncar has a backseat full of crazy this will not die, no matter how much the more quasi-reasonable ones would prefer everyone stuck to talking about tax cuts and obamacare.

    Sure, it irritates most of the country, but most of the country don’t vote in Republican primaries. As long as it is an easy way to get a big block of votes someone will keep bringing it up, and it’ll be the throwback social warriors who don’t have a real plan for once they get past the primaries.