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Federal judge issues order barring state from enforcing Florida same-sex marriage ban

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Florida state sealA federal judge has issued a preliminary injunction in Brenner v. Scott preventing the state from enforcing the same-sex marriage ban while the case moves forward.

The judge held that marriage is a fundamental right. From the opinion:

This order holds that marriage is a fundamental right as that term is used in cases arising under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, that Florida’s same-sex marriage provisions thus must be reviewed under strict scrutiny, and that, when so reviewed, the provisions are unconstitutional.

Since this is a federal case, the injunction will apply statewide.

The decision is stayed pending Supreme Court action on several petitions for review in marriage cases that are pending.

Thanks to Equality Case Files for these filings


  • 1. DoctorHeimlich  |  August 21, 2014 at 1:06 pm

    The last few opinions have been rather dry, mechanical compositions. But this judge has brought the return of the lofty rhetoric in a BIG way. The introduction, and Secion 4 ("The Merits") in particular use some of the most powerful language we've yet seen in one of these rulings:

    When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.

    Indeed, defending the ban on same-sex marriage on the ground that the capacity to procreate is the essence of marriage is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that, in another context, might be “accompanied by a suspicion of mendacity.”

    Effectively stripped of the moral-disapproval argument by binding Supreme Court precedent, the defendants must fall back on make-weight arguments that do not withstand analysis.

  • 2. brandall  |  August 21, 2014 at 1:23 pm

    Oh, excellent…"accompanied by a suspicion of mendacity.” We now have another quote to use besides "the arguments of serious people."

  • 3. bayareajohn  |  August 21, 2014 at 1:40 pm

    The Judge is WRONG:
    "It is the kind of argument that, in another context, might be “accompanied by a suspicion of mendacity."
    No, not just in ANOTHER context, specifically IN THIS CONTEXT it is accompanied by an inescapable stench of mendacity [lies].

  • 4. robbyinflorida  |  August 21, 2014 at 1:08 pm

    From the NOM blog just 4 hours earlier, "… the momentum behind the marriage redefinition agenda is waning." Brian Brown just can't win. Now he'll have to post his condemnation.

  • 5. Eric  |  August 21, 2014 at 1:41 pm

    When it comes to Brian and mendacity, there is no suspicion.

  • 6. RobW303  |  August 21, 2014 at 9:39 pm

    Anticipated response: "What we're seeing now is just the gaystapo picking the last of the low-hanging fruits. From here on out, it's a moral steamroller to the Supreme Court."

  • 7. brandall  |  August 21, 2014 at 1:08 pm

    Dear SCOTUS, we received your notice of grant for a stay yesterday. Today we had another District Court (Florida) rule in our favor. Soon, we will have 25 Federal cases in our favor. Can we come back to you when we hit 25 or do you also want the broom of the Wicked Witch of the West?

  • 8. Roulette00  |  August 21, 2014 at 2:38 pm

    Bring me the Head of Vecna!

  • 9. bayareajohn  |  August 21, 2014 at 1:17 pm

    Yes, it appears that lower Federal judges are trolling SCOTUS in a game of truth or dare.

  • 10. Altonfree  |  August 21, 2014 at 1:36 pm

    This is all going to be depressingly, boringly monotonous over the next year: all the rulings will be stayed until the Supreme Court rules in June. Very frustrating for those of us who'd become accustomed to having a new state added to the equality population every other week or so. It appears Pennsylvania will be the last state to allow all of its citizens to marry the person they love until all remaining states are added all at once.

  • 11. Corey_from_MD  |  August 21, 2014 at 1:45 pm

    I concur. that is why I will watch only three events moving froward : 1.) Will SCOTUS take a case in early October?, 2.) The oral arguments if they take a case and 3.) the outcome in June 2015. I hope that there will be more ruling in our favor before being stayed but these three future milestones are the most significant at this point.

  • 12. TomPHL  |  August 21, 2014 at 2:21 pm

    There is also the chance in Arkansas that the state supreme court will find the ME ban unconstitutional under the Arkansas constitution, which will be the final word in Arkansas. Please read the Arkansas constitution bill of rights before casting doubt on the possibility of a constitutional amendment being declared unconstitutional under another part of the same constitution.

  • 13. Mike_Baltimore  |  August 21, 2014 at 3:27 pm

    I've heard that SCOTUS has scheduled oral arguments through the end of the year, based almost all on required reviews and 'holdovers' from precious years.

    How many they can schedule for the rest of the term is unknown, but I've also heard that SCOTUS can accept requests for cert for oral arguments in the current term until 'the end of December' (especially if the request is combined with [not just argued concurrently with] another case already scheduled for oral arguments, and/or if it is considered an 'emergency' case). Remember, in the 'Hollingsworth' case, cert was not granted until December 7, 2012, oral arguments took place on March 26, 2013, with the decision handed down on June 26, 2013.

    Thus early October is not the final time period for a decision on whether to grant cert or not.

  • 14. Corey_from_MD  |  August 21, 2014 at 5:56 pm

    Cool. If there is any updates before October, we will see it in the national news. I will watch this site and others more intently in October to see what happens in SCOTUS. I will probably slack off if there is no news by the end of the October and just wait for any headlines for the rest of the year.

    Time to get in some sunshine, hit the waves and hold tight to my sweetie on the Eastern Shore for the rest of the season. Enjoy Mike!

  • 15. galen697  |  August 21, 2014 at 1:48 pm

    Through the judicial process, anyways.

  • 16. ranjitbahadur0  |  August 21, 2014 at 2:07 pm

    There is still a chance (depending on how fast they move) that the 9th will overturn the NV ban, and with no one to appeal a stay might not be issued, before any SC decision.

    The 9th will in all likeliness also uphold the District court in ID but that will be appealed and stayed immediately.

  • 17. RobW303  |  August 21, 2014 at 9:55 pm

    Since the North Carolina AG won't defend the ban, is there any other defendant in the case to appeal? If not, North Carolina could be added before SCOTUS rules.

    Similarly in the Nevada case: the hate group, due to prior precedent, won't have standing to appeal beyond the 9th Circuit Court, and the state has ceded its defense. This won't be stayed pending a SCOTUS ruling. SCOTUS will reject both an emergency stay request and a motion to intervene due to lack of standing. The mandate might get stayed temporarily while O'Scannlain seeks a pro-forma en banc review, but that will most likely be rejected. Nevada should only come trailing with the rest of the pack if the 9th follows an even more than usually glacial pace.

    Also, if the Republicans should lose the AG and governor's seats in Florida, that state might also precede the pack, unless I'm mistaken about the situation. Would the AFA have any more standing than the hate group in Nevada?

    Please correct me if I'm reading the situation wrong in any of these cases.

  • 18. Eric  |  August 21, 2014 at 1:44 pm

    Plaintiffs should really start challenging these stays. When a fundamental right is at issue, how is a stay warranted? Make theses judges show their legal reasoning.

  • 19. Ragavendran  |  August 21, 2014 at 3:44 pm

    Unfortunately at this point, since the Supreme Court granted a stay in Bostic, there is little to justify in not granting stays from the judges' point of view. They're just following the Supreme Court's direction, even if they realize that a stay is absolutely not justified by following the standard four-factor test, especially here when a fundamental right is being denied 🙁

  • 20. RobW303  |  August 21, 2014 at 9:59 pm

    They should keep hammering at the Supreme Court until it makes a more expansive response on the point. SCOTUS should not force lower courts to be "haruspices" regarding such a serious issue as the justification for stays.

  • 21. robbyinflorida  |  August 21, 2014 at 1:54 pm

    Could Pam Bondi block this from going to the appeals court? I think not.

  • 22. brandall  |  August 21, 2014 at 8:38 pm

    She will file a motion to stay stall pending the case until the a decision by SCOTUS. If she really wants to stall, she can ask for an en banc appeal. In this case, she will probably not get her request since this is the first cast to hit the 11th AC and they will want to weigh in. She now has to play chess on two boards, one with the FL SC and one with the 11th AC.

  • 23. sfbob  |  August 21, 2014 at 1:54 pm

    As there seems to be no point in objecting to the whole "gay=stay" issue (since the courts are gonna do what they're gonna do), the best thing it seems to me is to make some observations on the general tenor of the decision itself which, as DoctorHeimlich noted, is of a very high quality indeed.

    One of the first things to tickle me was the judge's observation that if Florida is going to assert its right to define marriage, how then do they comport that with challenging the status of marriages legally permitted in other states?

    The next is judge Hinkle's use of Glucksberg not to suggest that a new fundamental right is being created (as the defendants in many other cases have argued) but to note that Glucksberg cites the right to marriage as the first among several fundamental rights.

    And while the judge's understated indication that the state's argument "might be accompanied by a suspicion of mendacity" he is quite blunt in his next assertion:

    "The undeniable truth is that the Florida ban on same-sex marriage stems entirely, or almost entirely, from moral disapproval of the practice. Properly analyzed, the ban must stand or fall on the proposition that the state can enforce that moral disapproval without violating the Fourteenth Amendment."

  • 24. hopalongcassidy  |  August 21, 2014 at 3:24 pm

    As concerns your first 'tickle' point, I'd add "ESPECIALLY those states which have conferred ME by public VOTE"!

  • 25. sfbob  |  August 21, 2014 at 3:58 pm

    Yes. Good one. He should have added that. I sort of viewed what he did say as somewhat of a slap in the face anyway.

  • 26. bayareajohn  |  August 21, 2014 at 1:54 pm

    I'm unable to think of a previous topic in jurisprudence where such a quantity of one-sided lower court rulings queued up for SCOTUS to clarify their position and permit the execution of justice. So I don't even reach the initial question I had – has SCOTUS ever reversed a position that accumulated this much judicial inertia? Or one where the massive inertia has itself been based on attempts to properly interpret what SCOTUS chose to encrypt instead of declare in prior decisions?

  • 27. brandall  |  August 21, 2014 at 2:35 pm

    No. Absolutely not. Unprecedented. And I wrote to Lyle @ ScotusBlog 2 months ago to confirm this.

  • 28. Dr. Z  |  August 21, 2014 at 3:14 pm

    To say nothing of the breadth of challenges: every state in the country with a DOMA law. These laws have been falling in every part of the country, it's not a regional phenomenon. Having challenges everywhere is functioning as a de facto poll of the federal judiciary, or as close as you could get to one.

  • 29. bayareajohn  |  August 21, 2014 at 5:16 pm

    It's going to end up one of three ways:
    – SCOTUS agrees and clarifies the rules
    – SCOTUS punts and avoids by some means, inflaming the countless waiting stays
    – SCOTUS disagrees and has to say, "sorry you all thought that you understood us but you are all wrong. Well, all except for Tennessee where they historically more accurately understand minority rights." -THAT'S- never happened before… to this degree anyway.

  • 30. Mike_Baltimore  |  August 21, 2014 at 3:45 pm

    I'm quite certain SCOTUS reversed itself with desegregation cases ('Plessy' [in effect] overturned by 'Brown'; 'Pace' overturned by 'Loving'; etc.) after a long string of court cases, but the reversals were not immediate, but over a long period of time. And many courts used the 'early' SCOTUS rulings to not overturn the 'local' laws.

  • 31. Waxr  |  August 22, 2014 at 8:24 am

    In theory, SCOTUS can completely ignore the district and appeal courts rulings, and come to their own decision, and there is nothing anybody could do about it. In practice, SCOTUS has done just that, but there has never been this many decisions to ignore.

  • 32. JayJonson  |  August 21, 2014 at 1:59 pm

    From the decision: "Indeed, defending the ban on same-sex marriage on the ground that the capacity to procreate is the essence of marriage is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that,
    in another context, might be 'accompanied by a suspicion of mendacity.'"

  • 33. davepCA  |  August 21, 2014 at 2:11 pm

    I really like the way the ruling spells out the 'two-step analysis', beginning on page 21.

    "…is the right fundamental, and, if so, is the government encroachment unwarranted (that is, does the encroachment survive strict scrutiny)?"

    That puts it in very simple and clear terms.

  • 34. ragefirewolf  |  August 22, 2014 at 7:47 am

    Smallest. Flowchart. Ever.

  • 35. JayJonson  |  August 21, 2014 at 2:13 pm

    From the decision: "Effectively stripped of the moral-disapproval argument by binding Supreme Court precedent, the defendants must fall back on make-weight arguments that do not withstand analysis. Florida’s same-sex marriage provisions violate the Due Process and Equal Protection Clauses."

    Also: "Every court that has considered the issue has concluded that the intervening doctrinal developments–as set out in Lawrence, Romer, and Windsor– have sapped Baker ’s precedential force."

  • 36. RobW303  |  August 21, 2014 at 10:07 pm

    (Never mind; my question was answered below.)

  • 37. JayJonson  |  August 21, 2014 at 2:19 pm

    From the conclusion: "The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down. Liberty, tolerance, and respect are not zero-sum concepts. Those who enter opposite-sex marriages are harmed not at all when others, including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage. Tolerating views with which one disagrees is a hallmark of civilized society."

  • 38. jdw_karasu  |  August 21, 2014 at 3:44 pm


  • 39. Eric  |  August 21, 2014 at 6:21 pm

    That and as the judge pointed out 20 of the 22 plaintiffs are already married, meaning Baker doesn't speak to their situation.

  • 40. JayJonson  |  August 21, 2014 at 2:23 pm

    The judge made one exception to the stay–that applying to the suit of the lesbian widow that her wife's death certificate be corrected to show her as the surviving spouse:

    "There is one exception to the stay. The exception is the requirement to correct Ms. Goldwasser’s death certificate. The correction is important to Ms.
    Goldberg. There is little if any public interest on the other side of the scale. There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse’s death certificate. Indeed, the state’s refusal to let that happen is a poignant illustration of the controversy that brings us here."

  • 41. KahuBill  |  August 21, 2014 at 2:42 pm

    I hope this lower court "pile-on" continues (come on 9th Circuit!) as other cases proceed to argument and judgment. Hopefully Chief Justice Roberts realizes that the legitimacy and credibility of his Court will not survive another partisan Bush v. Gore situation. This Court is already considered (fairly or unfairly) by some as the US Branch of the Roman Curia given some comments coming from that bench.

  • 42. sfbob  |  August 21, 2014 at 2:55 pm

    And where they aren't viewed as the US Branch of the Roman Curia they may be fairly seen as the government branch of the US Chamber of Commerce.

  • 43. Mike_Baltimore  |  August 21, 2014 at 3:04 pm

    Off topic to this discussion, but on-topic to the purpose of this web site:

    Much has been made of the denial of cert from the Minnesota 'Baker' case, with the anti-ME bigots saying it is precedent, and some are saying the decision in Nebraska of almost a decade ago is also precedent, and that SCOTUS must issue a definitive statement about those precedents.

    How then does the case of 'Missouri v Jenkins' fit in or not fit in (the case was decided in 1995)? In that case, SCOTUS declared "a denial [of cert] "imports no expression of opinion upon the merits of the case. …" In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and that the lower court's decision is treated as mandatory authority only within the region of jurisdiction of that court."
    (… ) (The 'Jenkins' case did not deal directly with denial of cert, but with funding of schools. The reference to denial of cert was a 'side comment'.)

    Does SCOTUS need to make a specific ruling about the denial of cert in the 'Baker' case now, or could the denial of cert 'does not equate to precedent' be covered by the 'Jenkins' decision of almost 20 years ago (at the time, SCOTUS decisions were considered precedent, but by 1995 they were not all considered precedent)? And doesn't that also mean the states and parties using the 'Baker is precedent' excuse need to 'beef up' the reasons they believe 'Baker' applies?

  • 44. Scottie Thomaston  |  August 21, 2014 at 3:20 pm

    The problem is that there was no denial of cert in Baker v. Nelson.

    Instead, what happened was that the appeal was dismissed. Basically, to make a long explanation shorter, a lot of cases used to go to the Supreme Court on mandatory review rather than discretionary review. Baker was one of those cases – there wasn't a petition for cert, it was appealed directly to SCOTUS.

    A "dismissal for want of a substantial federal question" is different from a cert denial because cert denials aren't rulings on the merits. The type of dismissal in Baker IS a ruling on the merits on the precise questions presented to the court and necessarily decided.

  • 45. Mike_Baltimore  |  August 21, 2014 at 4:02 pm

    So does 'Jenkins' address the issue of cert denial or not? And aren't certs also a request for SCOTUS review of the case (an appeal for SCOTUS to review the case)?

  • 46. Scottie Thomaston  |  August 21, 2014 at 4:18 pm

    From a quick read it looks like one of the jurisdictional issues in Missouri v Jenkins involved whether the Court actually granted cert in one of the issues in the case, so that it was properly before them.

    In other words that case involved a cert petition, not an appeal that was summarily dismissed for want of a substantial federal question.

  • 47. FredDorner  |  August 22, 2014 at 11:10 am

    In the Wisconsin case Judge Crabb had a good review of the historic role of the summary dismissal vs denial of cert, specifically as it pertains to Baker (pgs 7-8):

    "In Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), the Minnesota Supreme Court held that same-sex couples do not have a right to marry under the due process clause or the equal protection clause of the United States Constitution. When the plaintiffs appealed, the United States Supreme Court had “no discretion to refuse adjudication of the case on its merits” because the version of 28 U.S.C. § 1257 in effect at the time required the Court to accept any case from a state supreme court that raised a constitutional challenge to a state statute. Hicks v. Miranda, 422 U.S. 332, 344 (1975). (In 1988, Congress amended § 1257 to eliminate mandatory jurisdiction in this context). However, the Court “was not obligated to grant the case plenary consideration,” id., and it chose not to do so, instead issuing a one sentence order stating that “[t]he appeal is dismissed for want of a substantial federal question.” Baker v. Nelson, 409 U.S. 810 (1972). At the time, this type of summary dismissal was a common way for the Court to manage the relatively large number of cases that fell within its mandatory jurisdiction. Randy Beck, Transtemporal Separation of Powers in the Law of Precedent, 87 Notre Dame L. Rev. 1405, 1439-40 (2012) (“Because the volume of . . . mandatory appeals did not permit full briefing and argument in every case, the Court adopted the practice of summarily affirming many lower court decisions and summarily dismissing others for want of a substantial federal question. These summary affirmances and dismissals were routinely issued without any opinion from the Court explaining its disposition.”). In fact, a few years later, the Court similarly handled another case involving gay persons when it summarily affirmed a decision upholding the constitutionality of a statute criminalizing sodomy. Doe v. Commonwealth's Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901 (1976)."

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  • 49. RemC_in_Chicago  |  August 21, 2014 at 5:32 pm

    After living in Florida for most of my life, and leaving because the laws in Illinois were friendlier to families like mine, I am thrilled not just with the outcome, but the delicious writing in the ruling. If I could print it right now, I would and hug it to my chest. Love, love, love this ruling. Articulate, profoundly rational, blunt and thorough. Here's hoping Judge Sutton from the 6th Circuit has this one read aloud to him in its entirety.

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  • 51. sare99  |  August 22, 2014 at 7:07 am

    If SCOTUS chose not to hear any of the ME cases what happens to the stays that they granted?

  • 52. sfbob  |  August 22, 2014 at 8:02 am

    If SCOTUS chooses not to hear any of the cases–meaning that they deny cert–then the stays all expire.

  • 53. sare99  |  August 22, 2014 at 8:22 am

    Thanks for the info sfbob. I always enjoy your posts.

  • 54. SeattleRobin  |  August 23, 2014 at 6:22 am

    Now that I've read the decision, I don't like what the judge did with the stay. Not that he issued one (I think his explanation was convincing), but that under the conditions for its expiration he has put in place such lengthy time periods. He has conditioned the stay not on specifics of this case, but instead based it on existing stays in other cases in other states. Then he tacks on a NINETY DAY period after that before the injunction goes into effect.

    The whole opinion is focused on how marriage is a fundamental right, but then he grants an enormous delaying period to the state. Allowing the state a grace period in which they have time to educate employees and amend forms is fine. But we've already seen that states can do what is necessary within a very short time frame. Especially considering that they have all the months until SCOTUS decides in which to prepare anyway. Giving the state an additional 90 days after that is egregious.

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