When last we spoke, the freedom to marry had just been handed a setback: the Sixth Circuit let stand marriage discrimination laws in Ohio, Michigan, Kentucky and Tennessee. Over the holiday season, though, we took many steps forward in defiance of that egregious and wrongheaded appellate court opinion: Marriage equality officially came to Montana and South Carolina. And although she tried every trick in her book, Florida Attorney General Pam Bondi could not stop the arc of justice from sweeping ashore in the Sunshine State.
The arrival of marriage freedom in Florida is particularly notable because of how it happened.
In Florida, a federal district court judge ruled in August that the state's marriage ban was unconstitutional; the judge stayed his decision until January 5, 2015. The Republicans running the state wanted to delay as much as possible as they appealed the judge's ruling to the 11th Circuit Court of Appeals. But neither the district court nor the circuit court would grant the state a stay beyond January 5. So, Attorney General Bondi asked the Supreme Court. The Court said no, with only Justice Scalia and Thomas willing to issue the stay.
Note the difference between South Carolina and Montana, on the one hand, and Florida on the other. South Carolina is under the jurisdiction of the Fourth Circuit, which declared Virginia's marriage ban unconstitutional some time ago. Montana is in the Ninth Circuit, which made a similar decision in Idaho's case in October. Because marriage equality was just steps away from all the other states in those jurisdictions as a result of the appellate court decisions, the Supreme Court declined to issue a stay in the South Carolina case.
Florida is in the Eleventh Circuit, which has not had occasion to rule on a gay marriage case. So the Supreme Court's refusal to grant a stay and to allow marriages to start in Florida was a stronger pro-equality signal than denying a stay in South Carolina.
CONTINUED, AFTER THE JUMP…
The denial of a stay in Florida was the first time the Court helped usher in marriage equality in a jurisdiction without a favorable appellate court decision. That several Florida clerks tried to resist the judiciary's rulings by refusing to comply with the law, their antics were just sideshows to the bigger picture. By the time the particularly hateful clerks were corralled into line, the bigger story remained: The Supreme Court is not in the business of stopping marriage equality.
It is inconceivable that the Supreme Court would be willing to let gay couples start marrying only to bitterly take away the right to marry several months later.
But Florida's fight is now in the past. We won.
Marriage equality's broader journey through the federal courts comes to a head tomorrow, Friday, January 9, when two things happen simultaneously. In New Orleans, Robbie Kaplan, the attorney who represented Edie Windsor and successfully argued the Windsor before the Supreme Court, will argue for marriage equality at the Fifth Circuit. In Washington, D.C., the Supreme Court justices will meet in private to discuss whether to hear marriage equality cases from the Sixth Circuit, the only court to uphold state bans on the freedom to marry.
Stay tuned to Towleroad for two columns on each development.
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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.
