SCOTUS allows same-sex marriages to proceed in Florida

Over the dissents of two Justices, the Supreme Court late Friday afternoon refused to delay — beyond January 5 — a federal judge’s order that would permit same-sex couples in Florida to marry after that day. Lyle Denniston at SCOTUSblog reports, Court won’t add to delay of Florida same-sex marriages:

EqualNeither the apparent majority of seven nor the two dissenters gave any explanation.  Justices Antonin Scalia and Clarence Thomas simply noted that they would have granted the plea by state officials to extend the postponement beyond the early January date.

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.

The two most ethically challenged Justices of the Court, Antonin Scalia and Clarence Thomas, who would be sanctioned in a heartbeat if the Code of Conduct for United States Judges – U.S. Courts applied to the U.S. Supreme Court due to their overtly partisan political activities outside of the Court, have been dissenting from such denials with greater frequency. They appear to be trying to hold back the tide of history that is passing them by.