Florida marriage stay denied by SCOTUS

Timothy Kincaid

December 20th, 2014

In July, Miami-Dade Circuit Judge Sarah Zabel found that Florida’s ban on same-sex marriage was a violation of the US Constitution. That ruling was put on hold until January 5, 2015, in order to give the state time to appeal.

The state has appealed to the Eleventh Circuit Court of Appeals to have the stay extended. The request was denied.

Then the state appealed to the Supreme Court. Which has now denied the stay. So same-sex marriages will begin in Florida in 17 days.

Interestingly, the order states that Justice Thomas and Justice Scalia would have granted the extension of stay. But the justice who handles stays for the Eleventh Circuit is Clarence Thomas. He could have simply extended the stay under his own authority. However, Thomas deferred to the full court, which chose not to extend.

I’m not exactly sure how to translate that move, but it sounds a bit to me like Thomas is saying, “I oppose same-sex marriages, but not quite enough to actually stop any of them”.


December 20th, 2014

Had Thomas opted to unilaterally extend the stay the ACLU would have appealed to the full court which would have reversed the decision. It is also possible the justices agreed on a protocol for dealing with appeals for stays on this topic in advance.


December 20th, 2014

It’s looking more and more like Scalia and Roberts will flip from their DOMA ruling and we’ll win 7-2.


December 20th, 2014

Scalia? I could possibly see Roberts, but I can’t imagine a world where any of Scalia, Thomas or Alito rules against a marriage ban.


December 20th, 2014

i think it’s pretty clear by now that Roberts ask each of the justices to refer any filing regarding SSM to the entire court and not to act alone on them.


December 21st, 2014

It’s not uncommon for judges to defer to courts for which the matter is relevant to.

Look at when the 9th asked the California Supreme Court for their opinion before moving on in their judgement.


December 21st, 2014

Sorry, I meant Alito, not Scalia. Scalia definitely is not a fan of the mos. He and Thomas are the only two that have vocally objected to the Court not taking these cases.

enough already

December 21st, 2014

There are only two only firm conclusionswe may draw from this. First, Justices Thomas and Alito would have granted an extension of the stay.
Second, at least five Justices did not wish to grant the extension.

Everything else is speculation.

One thing which worries me and which leaves me very concerned that we might still lose: The conservative majority on the Robert’s court has shown no regard for the number of Americans whom their past decisions harmed. It’s completely possible that they are imposing rules and procedures upon all participants in this matter for reasons which have nothing to do with granting us human and civil rights.

Hobby Lobby was more than a warning shot.


December 21st, 2014

Does Pam Bondi NOW understand just how legally wrong she has been all along? Do the people of The State of Florida understand? [the CONSERVATIVE ones that is]

How much have taxpayers paid for this impotent legal exercise in futility I wonder?


December 21st, 2014

and Enough already,
You are exactly correct on the Hobby Lobby ruling. This was an indicator of the, wrong religious, bent of the court.


December 21st, 2014

I’m not worried. If there were five justices opposed to marriage equality, they never would’ve let these stays expire. It makes no sense at all to allow gay marriages in all these states, only to later declare them null and void.

enough already

December 21st, 2014

Of course it makes sense. Chief Justice Roberts has complained, from the beginning, about the appalling lack of discipline the rest of the government in general and the courts in particular have shown in the last decades.
He’s perfectly capable of trying to impose order by denying stays while forbidding gay marriage for many generations to come when he has the decision to make.

Priya Lynn

December 21st, 2014

“He’s perfectly capable of trying to impose order by denying stays while forbidding gay marriage for many generations to come when he has the decision to make.”.

I’m not following you here. How does denying stays impose order?

enough already

December 22nd, 2014

By forcing government agencies to work up through the various levels of federal court instead of leapfrogging straight to SCOTUS for an ‘Endlösung’ to every single, solitary conflict.

It’s puzzles me, to be honest, how so many commentators here can run to the seventh-grade debate class list of ‘well that just shows you’re wrong’ terms yet ignore Chief Justice Roberts clearly stated positions on procedure.

His own feelings about us are clear: We have no Constitutionally anchored rights and he won’t ever grant us any.

Oh, and this being the Internet, better point out that, being German, I know the proper meaning of Endlösung. It’s the reason I used the term.


December 22nd, 2014

No, I’m sorry, but allowing thousands of marriages to take place only later to invalidate them is the polar opposite of “imposing order”. This mess we have now is entirely disorderly, even us idiotic seventh graders can see that. There’s also nothing to support your contention that allowing stays is less “orderly” then not allowing them. That’s a wholly arbitrary distinction you invented.


December 22nd, 2014

Also, holding the lower court rulings does not contribute to any more “leap frogging” at all then allowing them to go through. Again, you’ve invented this distinction.

enough already

December 22nd, 2014

Ryan and Priya,
That’s the fun part of this blog – I can take any position and be assured of disagreement.

Ryan – you wrote:
Also, holding the lower court rulings does not contribute to any more “leap frogging” at all then allowing them to go through. Again, you’ve invented this distinction.
end quote

I’m sorry, but perhaps it’s too early in the day for my brain, but what, exactly do you mean by this? SCOTUS, in not granting stays has neither ‘held’ nor ‘allowed’ anything. They have none nothing, thereby letting the lower courts continue their work on the matter.

Ryan wrote:
No, I’m sorry, but allowing thousands of marriages to take place only later to invalidate them is the polar opposite of “imposing order”. This mess we have now is entirely disorderly, even us idiotic seventh graders can see that. There’s also nothing to support your contention that allowing stays is less “orderly” then not allowing them. That’s a wholly arbitrary distinction you invented.
end quote

You contend that allowing our marriages now and dissolving them later is the opposite of ‘imposing order’, I don’t. From everything the Robert’s court has done, it seems obvious to me that they have zero interest in the harm their decisions do to any amount of Americans who aren’t part of ‘big-business’. Our interests aren’t Constitutionally protected in Chief Justice Robert’s view and it is therefore of no matter whether we have a small period of time in which it appears we do.
As for the whole ‘order’ debate, you’re conflating two entirely different matters.
I suggest you research the Legal Process School of thought and Justice Robert’s views on that school. It might help to resolve our conflict, though it might also result in the (horrors!) need to accept that I’m not a total idiot, after all.

Priya Lynn

December 22nd, 2014

“Oh, and this being the Internet, better point out that, being German, I know the proper meaning of Endlösung. It’s the reason I used the term.”

No, you use it to try and falsely make yourself feel smarter than those who don’t know what the term means. Using it serves no purpose in the debate itself.

The supreme court not granting a stay is just as much them solving conflicts for the various levels of federal court as granting a stay is – the supreme court is making a decision for the various levels of federal court either way so your claim that denying stays imposes order still doesn’t make any sense.

And on all blogs you can take any position and be assured of disagreement – its the nature of people, there’s alwasy someone on every side of an issue. Your insinuation that people disagree with you on issues they actually agree with you internally on is just another childish way to give yourself false assurance that you must be right.

Priya Lynn

December 22nd, 2014

And “I suggest you research da tada tada” is just a cheap cop-out to end the debate and claim you’re right with no actual proof you’re right and avoid admitting that you can’t justify the position you’ve taken that denying stays imposes order.

Priya Lynn

December 22nd, 2014

I’ve had enough of your trollish behavior enough so I’ll leave this thread and allow you to continue to make non-sensical arguments and foolishly pretend that shows how smart you are.

enough already

December 22nd, 2014

Except for the little matter that I’ve often posted here under another name on the same thread. You’ve disagreed with me vehemently under EA and agreed with me under that other name although both pseudonyms represented the same view.
It’s OK, we all have our opinions on each other and it’s hard to actually see the words on the screen as opposed to the voices we ‘hear’ speaking them.

As for this current discussion, though, I really don’t see how either you or Ryan have presented one lick of evidence that the Robert’s court, by following procedures which, until fairly recently were the standard, is acting in our queer interests.

As for my use of various terms, it’s not an attempt to ‘win’ by pretending I’m smarter or better educated or some such nonsense.
I’m a farmer who breeds dogs for goodness’ sake. That doesn’t mean, however, that I’m wrong when I maintain that a very powerful group of Christian politicians in this country would, if they could, do to gay men what they Nazis did to the Jews. Reading the friends-of-the-court letters (there, I didn’t use the easy term amici curiae just to make you happy) written by those Christian politicians in Idaho and Kansas these last few months has made that quite clear.


December 22nd, 2014

You haven’t “one lick of evidence” that refusing to stay the lower courts’ rulings is “imposing order”. It is frankly a very silly and odd assertion. And as far as whether or not the court is “acting in our queer interests”, the answer post Windsor is a very clear and unambiguous “yes”.


December 22nd, 2014

I think you are right in that our victory before SCOTUS is not assured. Of course, like most commentators, my basis for this fear is not Roberts or how he runs his court. Rather, it lies in our analysis of Kennedy, and whether he believes the US Constitution protects the marital rights of same-sex couples, or if he instead believes that states have a right to ‘define’ marriage but that definition must be respected by the Federal Gov’t. Indeed, your Hobby Lobby reference could suggest that Roberts might agree to a right to same-sex marriage, if only in the name of complete, unadulterated religious liberty.

That aside, I think it is important to look at the history of SCOTUS’s actions on SSM. The Prop9 case does support your assertion that the Roberts court is most interested in order. However, every SSM case that has worked its way through the system since Windsor has gone through the proper channels. In the time between Windsor and their Oct 6th release of this term’s cases, SCOTUS enacted or extended stays on lower court rulings to allow time for appeal. Since Oct 6, they have denied to issue or extend stays on any favorable rulings (with one exception, which happened to be a procedural issue). Indeed, your argument regarding the imposition of order would suggest that SCOTUS would have extended the stay for Florida – this is, as I understand it, the first time they have denied a stay for a case that has not even been ruled on by the relevant circuit court. If SCOTUS had issued such a stay, it would have been in keeping with their pre-October pattern, and demonstrated that keeping to the proper process is more important than freedom or equality. Finally, we have the matter of the October inaction. If the pattern of rulings had thus far been contrary to the will of the Roberts court, why did they turn down the cases from the circuit courts? Those cases had proceeded through the proper channels, so “order” is a strange justification for not taking the cases. About the only support you have for that argument is that there was not yet any conflict in the circuits. But that raises a plethora of other questions: Why would they not take cases they were going to overturn just because the cases had no conflict? Do they really think hurting people is justified just so they can wait for a conflicting case? Why would they stop issuing/extending stays on cases they intended to overturn? What would have happened if no conflict had arisen? Would your SCOTUS be willing to sit by and let marriage equality take over the nation just because no circuit conflict had arisen?

It seems to me that the simplest answer is that, like the GOP, the Roberts court was hoping SSM would become law without them having to act. Now there is a conflict, they have no choice but to take a case and rule. Does all the evidence prove that SCOTUS will support SSM? No. But it is hard to imagine that anybody is so petty over following proper court procedure that they would allow so much harm to so many people. Overturning laws meant to protect people because of imagined harm to other people is not the same as allowing laws to be temporarily overturned just because you don’t like how the courts are handling the process. One is a legitimate part of the process (no matter how heinous the result). They other stands in opposition to true order, and proper procedure.

enough already

December 22nd, 2014

That is very well reasoned.
I quite agree that it comes down to Justice Kennedy for the ‘fifth’ vote.
As far as Justice Alito and Chief Justice Roberts, I don’t entirely discount the possibility that they might stand for equal rights for all Americans – I give Justice Alito a 10% chance (his questions from the bench on harm to children were very pointed last year) and Justice Roberts might be open to fairness, if only to make his attack on Obamacare seem more ‘just’. I give him about a 1% chance of supporting us.

Pure speculation, of course – but I don’t pretend it’s anything else.

As for the ‘pettiness’ you raise, actually, that’s your weakest point. The American justice system has proved itself, time and time again quite willing to play by different rules when it comes to gay men. Growing up between two cultures, I just don’t share the basic belief in ‘justice for all’ which people like Ryan here hold to.
Perhaps it’s because I was out and loud and proudly marching for our rights in the 1970’s? Saw that Silence=Death is more than a catchy phrase in the 1980’s?
Have actually read the briefs filed to the various district courts this past year?

Eric Payne

December 23rd, 2014

I’ve been reading this thread with a little grin on my face; I’m one-half of a legally married (though not in our resident state) couple. Bill believes SCOTUS would not, now, undo marriage equivalency in 36 states… I try to get him to see it would be nothing to SCOTUS, as marriage law is a state issue.

He’ll talk about Loving v Virginia and the Full Faith and Credit clause of the Constitution.

I’ll point out there were other factors finding miscegenation laws being found unconstitutional, such as the immutability of race — you know the old “you choose to be a fag!” argument. Since science has never disproven that argument, it remains a bedrock belief of our opponents and still the prevalent belief of our law-makers and interpreters.

He brings up “the chaos” it would cause in the states where lower courts have ruled in our favor.

SCOTUS doesn’t care about “chaos.” If th ey did, states wouldn’t be able to lab-grand for private contractors, nor allow no-limit corporate campaign donations, nor permit the endorsement of a single faith’s beliefs in municipal business, nor allow a business to impose the religious beliefs on the sex lives of their employees.

But this Court has allowed for all that, and more.

SCOTUS is, supposedlyu, only interested in how the case before them relates to the federal Constitution.

If that is the ONLY thing the court considers, it can easily turn over the pro-gay Circuit Court rulings.

Our marriages would simply be declared null. Federal benefits would halt; those of us who’ve received a spousal federal benefit would be invoiced by the government to pay them back.

“Chaos”? Hell yes, but to SCOTUS it’s just checking a box on a form.

enough already

December 23rd, 2014

You’re quite right. You’ve expressed it far better than I was able to.

In the end, all the conservative gays who argue that it’s OK to ‘vote your interests’ by voting Republican are putting themselves at far greater risk than they imagine.

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