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Florida asks highest court to block gay marriage

Florida Attorney General Pam Bondi asked the U.S. Supreme Court to prevent gay marriages from taking place while the state continues its fight to protect its constitutional ban against gay marriage, which was passed by voters in 2008.
Published Dec. 16, 2014

Less than two weeks after a federal court refused to temporarily block gay marriages from taking place, Florida Attorney General Pam Bondi on Monday asked the U.S. Supreme Court to intercede.

The move comes as state officials appeal a ruling that overturned Florida's voter-approved ban on same-sex marriage, positioning Florida to become the 36th state to allow gay couples to marry.

A subsequent decision from a federal appeals court opened the possibility for gay couples to exchange vows as soon as Jan. 6, and some county clerks of court have said they are ready to begin issuing marriage licenses. But state officials said the decision, handed down by the 11th U.S. Circuit Court of Appeals in Atlanta, could lead to chaos.

In her filing, Bondi asked the Supreme Court to prevent marriages from taking place while Florida continues its fight to protect its ban on gay marriage. Voters inserted the prohibition into the state constitution in 2008.

Bondi spokeswoman Jennifer Meale portrayed the request for a stay as an attempt to bring clarity to the issue.

"The recent decision denying a longer stay has created statewide confusion about the effect of the injunction, which is directed to only one of Florida's sixty-seven clerks of court," Meale said in a written statement. She described Bondi's application for a stay as a "continuation of the effort to maintain uniformity and order throughout Florida."

In urging the court to step in, Bondi warned that the federal appeals court's ruling could leave Florida with a fragmented legal landscape in which marriage licenses are available to gay couples in some counties, but not in others. Because only one clerk of court is named in the federal lawsuit, she said, the other 66 Florida county clerks are not legally bound by the judge's order and could make vastly different decisions.

"The public interest is not served by having two sets of marriage laws in Florida or by confusion about the law," she wrote.

American Civil Liberties Union staff attorney Daniel Tilley said there's no validity to this argument. The August decision by U.S. Judge Robert L. Hinkle of Tallahassee applies to all of Florida's clerks, as well as its state government officials, he said.

"I don't think concerns about confusion are sincere or that they in any event overcome the very real and substantial harms that continue to befall families across this state," he said.

If the Supreme Court agrees to issue a stay in Florida, same-sex marriage would not become legal when an earlier stay, issued by a federal judge, expires at the end of the day on Jan. 5. In her filing, Bondi requested that the stay remain in place at least until the court decides whether to take up any of the same-sex marriage cases coming out of the 6th Circuit in Ohio, the only federal appeals court to uphold the right of states to ban gay marriage.

Recent history suggests Bondi's application is headed for rejection.

Her request will land on the desk of one of the court's most conservative members — Justice Clarence Thomas, who is responsible for overseeing federal courts in Florida. He could rule on her request for a stay (in which case, the full court could reverse his decision) or he could refer the matter to the entire court.

In recent months, Kansas and South Carolina have asked the Supreme Court to block same-sex marriages, with no success. In cases where states did win a temporary stay, the full court ultimately denied them.

If there is a bright spot for gay-marriage supporters in Bondi's application, it may be in the lack of language suggesting that gay marriage would harm Florida because the only stable family is a straight one. Although she made this argument before the U.S. district court, it's nowhere to be found in her recent filings.

"I think it's a concession," said Tilley of the ACLU. "They are not willing to name the harms because they know that the harms don't exist and that Floridians know the harms do not exist. I think Scott and Bondi are trying to walk a tightrope here in their ill-fated appeal."

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

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