Yesterday, the nine justices of the Supreme Court of the United States (SCOTUS) declined to hear any of the federal cases pending before them regarding state bans on same-sex marriage. By not taking up the cases, SCOTUS allows the lower district court decisions to stand, meaning same-sex couples in Utah, Oklahoma, Virginia, Wisconsin, and Indiana will soon be able to marry. This development also means any other state with similar bans in the Fourth, Seventh, and Tenth Circuits will soon have marriage equality as well. These states include West Virginia, North Carolina, South Carolina, Kansas, Colorado, and Wyoming.
Though this action by SCOTUS will impact thousands of couples across the U.S., it does not have a direct effect on Florida's ban because the state is part of the 11th Federal Circuit.
The constitutionality of gay marriage in Florida is still winding its way through the courts. Florida's attorney general, Pam Bondi, could drop the fight and let gay marriages proceed, or she could continue the fight until it is resolved in federal appeals courts. Bondi has said she continues to fight not because of her personal viewpoint but because gay marriage is prohibited by the state constitution --- in just 2008, 62 percent of voters chose to define marriage as between a man and a woman.
Currently, the so-called Brenner case -- Jim Brenner et al. v. Armstrong et al. -- is one of two cases from Florida is that is challenging the state's ban through the federal court system. The other federal case, which was initiated by the American Civil Liberties Union, has been merged with the Brenner case for the judicial expediency.
A federal judge, Robert Hinkle, this summer ruled that Florida's ban on gay marriage was unconstitutional, but knowing that similar cases were pending before the Supreme Court, he put a stay on his own decision. Also, Bondi appealed his decision to the 11th Circuit Court of Appeals.
Now, plaintiff Jim Brenner explains, if that court, which is based in Atlanta, strikes down Florida's ban on same-sex marriage, the decision would, on its face, be a legal recognition of same-sex couples in Florida as well as in Georgia and Alabama. Brenner's attorney says the appeals court could rule anytime between now and October 2015.
However, "Many court watchers expect us to lose because Atlanta is very conservative. Most likely, the attorney general, Pam Bondi, will appeal a positive ruling for us to SCOTUS, or we will appeal if we lose. If Atlanta does reverse Judge Hinkle's decision, then there is a conflict and SCOTUS would be required to hear our case."
Meanwhile, yesterday's turn of events at SCOTUS set into motion a legal countdown. In Hinkle's summer he immediately stayed his ruling and ordered another 90-day stay take effect once SCOTUS lifted the stays in the Fourth Circuit and in Utah. Now that those stays have been effectively been lifted, the clock has begun ticking. If Florida officials do not ask the 11th Circuit Court to extend Hinkle's stay, or if the court rejects their request, then marriage licenses could be issued to gay couples in early January.
"My understanding from our lawyers is that if the state does not request a stay, we are good to go in 90 days," said Brenner. "I doubt Bondi will miss this chance to place another stay, though. You never know, though; stranger things have happened."
In addition, the ACLU told the Miami Herald that today it would ask Hinkle to lift his own stay. The state has 17 days to contest that request, but if it were granted, marriage equality could come to Florida around the end of October.
Bondi said yesterday that her office was deciding what its next move would be.
There's one other factor at play: Some speculate that if Charlie Crist wins his gubernatorial campaign, under his leadership, Bondi may be swayed to relinquish the state's appeals.
"The reason many LGBT supporters hope that Charlie Crist is reelected is because he will most likely direct her office to drop all statewide appeals concerning same-sex marriage," said Mark Ebenhoch, media director for one of the couples challenging Florida's gay marriage ban. "I'm not sure if Crist is the best candidate, but at least he is not hostile Gov. [Rick] Scott."
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