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Advocates: Court ruling makes Florida same-sex marriage inevitable

The U.S. Supreme Court's unexpected decision Monday to step aside and permit same-sex marriage in five states may not have an immediate impact on Florida, advocates said, but could hasten the state's path to sanctioning gay unions.

The word on many advocates' lips was "inevitable."

"We said that marriage equality is coming to Florida. After today's message from the nation's highest court, we know that it is coming even sooner," said Daniel Tilley, a lawyer for the American Civil Liberties Union of Florida.

Since 2008, Florida has had a voter-approved ban on same-sex marriage, a prohibition that has placed it in an ever-shrinking pool of like-minded states. With the Supreme Court's decision to let appeals court rulings stand in Indiana, Oklahoma, Utah, Virginia and Wisconsin, the number of states with same-sex marriage will rise from 19 to 24. The court's decision is likely to apply to six more states also covered by those appeals courts, ultimately bringing the total to 30.

The decision arrived at an awkward moment for Florida Attorney General Pam Bondi, whose office has filed appeals in several suits challenging the state's ban.

Immediately after the Supreme Court issued its orders, Bondi faced renewed pressure from gay marriage advocates to drop those appeals. She was already scheduled to appear on a televised debate with her opponent in the November election, who quickly added his voice to the chorus of critics.

"My office, this just came out less than three hours ago, will be reviewing that, see what happens next, there are a lot of other cases in the pipeline," Bondi said during the debate aired on Bay News 9. "What I've always said is that the court must decide this — we need finality from the judiciary."

In several cases, circuit judges and a U.S. district judge have ruled against the state's ban but stayed the rulings pending a Supreme Court decision.

Tilley said the ACLU would now move quickly to file a motion asking U.S. District Judge Robert L. Hinkle to lift the stay he issued in August in a North Florida same-sex marriage case. Doing so would allow couples to get marriage licenses while the case, Brenner v. Scott, proceeds to the 11th Circuit Court of Appeals in Atlanta.

Bondi may decide to fight to keep the stay in place, taking the issue to the appeals court if Hinkle rules against her.

To Florida's gay marriage opponents, Monday's decision was a severe disappointment, lessened only by the fact that the ruling does not apply here.

Florida Family Policy Council president John Stemberger said he opposes lifting the stay. "There should be no same-sex marriages issued in Florida," he said.

Filed in March, the Brenner case is the furthest along of any of the legal challenges filed in federal court in Florida, and is the first of its kind to reach the 11th Circuit, which also has jurisdiction over Alabama and Georgia.

The plaintiffs are a gay couple who married in Canada in 2009 before moving to Tallahassee, where their marriage license was about as useful as snow shoes.

Gay marriage advocates expect the 11th Circuit to decide the Brenner case in early 2015. Assuming it is appealed, they are optimistic it will travel the same path laid Monday by the Supreme Court, an expedited journey that could bring gay marriage to Florida a year from now. If this happens, bans in Alabama and Georgia would likely topple as well.

Still, there is no guarantee that the 11th Circuit, known for being conservative, would strike down Florida's ban. If it upholds the law, becoming the first federal appeals court in the country to do so, it could provide the Supreme Court an opportunity to step in to resolve conflicting rulings.

At the state court level, several challenges to Florida's law could work their way up to the Supreme Court around the same time as the Brenner case, but are unlikely to be accepted for review.

Monday's decision was "a good indication of how the Supreme Court is ultimately going to rule," said Brett Rahall, one of the Tampa lawyers representing a gay woman seeking to divorce her wife in Hillsborough County. "I don't believe the Supreme Court would have allowed gay marriage to go into effect if they didn't already see the handwriting on the wall."

Contact Anna M. Phillips at aphillips@tampabay.com or (813) 226-3354. Follow @annamphillips.

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