The Supreme Court on Friday cleared the way for same-sex marriages to commence in Florida, meaning such unions will soon be allowed in five of the nation’s six most populous states.
The court, without comment, turned down a request to block gay marriages in Florida while the state appeals a judge’s order that its ban is unconstitutional. Justices Antonin Scalia and Clarence Thomas said they would have granted the motion, but did not explain their reasons.
The decision follows the court’s pattern not to intervene in lower-court rulings that such bans are unconstitutional, even though the Supreme Court itself has not made such a ruling.
In August, a U.S. district judge in Tallahassee struck down Florida’s constitutional amendment banning same-sex marriages. He stayed his decision until Jan. 5. Florida asked the U.S. Court of Appeals for the 11th Circuit to continue the stay, but a three-judge panel unanimously turned the state down.
Florida Attorney General Pam Bondi (R) then asked the Supreme Court to step in.
Florida’s request is different from other ones the justices have confronted. The justices have consistently refused to grant stay requests from states in the four regional appeals courts that have agreed that state bans are unconstitutional.
But the 11th Circuit has not ruled whether or not states may ban same-sex marriages.
“If Florida’s law is going to change . . . it should happen only after the order undergoes appellate review,” Bondi said in her request to the Supreme Court. “The public interest is not served by on-again, off-again marriage laws.”
There is also some confusion about whether the U.S. district judge’s order requires same-sex marriage licenses to be offered in all of Florida’s counties, or just the one in which the case was based.
On the first day of the current term, the Supreme Court, without comment, turned down requests from states in which appeals courts had found their marriage bans unconstitutional. At the time, no appeals court had upheld a state ban.
As a result of victories in appeals courts around the country, same-sex couples are allowed to marry in 35 states, including the most populous California, New York, Illinois and Pennsylvania.
But in November, the U.S. Court of Appeals for the 6th Circuit turned down challengers in Michigan, Ohio, Tennessee and Kentucky.
Such splits in the circuits are usually the necessary prerequisite for Supreme Court review. And it is expected that the court in January will consider whether to accept one or more cases that would pose the question of whether marriage is a fundamental right that states may not withhold from gay couples.