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.
Neither 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.
Marriages are occurring now in most of the thirty-five states where state laws or court rulings allowed it, or where courts had acted to strike down state bans. When the Court took its first actions during the current Term on same-sex marriage — denial of review on October 6 of bans in five states — only nineteen states and the District of Columbia allowed such marriages.
When the Court first began turning down postponement requests or to withdraw earlier, brief postponements, there were no dissents. More recently, however, Justices Scalia and Thomas had been dissenting from such denials. Although it appeared that Friday’s order had the support of seven Justices, that may not necessarily have been so; Justices do not always publicly note a dissent.
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