U.S. District Judge Robert Hinkle, who in August declared the Florida ban unconstitutional, put his ruling on hold pending appeals that were further along in other federal courts.
After the U.S. Supreme Court in October turned away appeals from five states seeking to prohibit gay and lesbian unions Hinkle was asked to lift the stay on his ruling. Hinkle in November refused and instead said his stay would remain in place until Jan. 5.
Florida Attorney General Pam Bondi asked the Atlanta-based 11th Circuit Court of Appeals to keep the state’s ban in place while it pursued an appeal of Hinkle’s initial ruling. The appeals court refused to extend the stay, but said it would consider the substance of the state’s appeal on an expedited basis.
On Monday, Bondi filed an emergency petition asking the Supreme Court to keep the ban in place past Jan. 5.
The request was filed with Justice Clarence Thomas, who oversees emergency appeals from Florida, Alabama and Georgia. On Tuesday, Thomas called for a response to the Florida application, by 5 p.m. Thursday.
This particular dispute thus tests whether the Supreme Court will put off same-sex marriages in a state that is not yet under a federal appeals court decision striking down a state ban and setting a binding precedent for trial courts in the region, to give the appeals court for that area a chance to rule.
Since the Justices on October 6 refused to hear the first round of same-sex marriage cases that had unfolded over the past year or more, the Court has not imposed any delays on the opportunity for same-sex couples to marry even though the Justices themselves have yet to rule directly on the constitutional controversy.
A second round of same-sex cases has recently reached the Court, and it is now widely expected that the Justices will take their first look at those when they next meet for a private Conference, on January 9.
It now appears likely that the Court will agree to hear one or more of the new cases, because there is now a split in the federal appeals courts; there was no such division in early October, when the Court chose to remain on the sidelines for the time being.
The split occurred in early November when the U.S. Court of Appeals for the Sixth Circuit upheld bans on same-sex marriage in four states in its geographic area.
The Florida couples argue that the Supreme Court has been well aware of the split in the federal appeals courts on the same-sex marriage issue, and yet has turned aside postponement requests in cases that have come to it more recently.
The state has the option of filing a reply to the new briefs before Thomas or the full Court acts on the request.