The first full week of January will be a big one for the national debate over same-sex marriage bans, starting in Florida on early Tuesday and ending with a private Supreme Court conference on Friday.
Late last week, a federal judge cleared the way, at least for now, for same-sex couples to apply for marriage licenses in Florida. On New Year’s Day, U.S. District Judge Robert L. Hinkle in Tallahassee issued an order clearing up a preliminary injunction he issued last August, at the request of a clerk in Washington County tasked with handling marriage licenses.
Judge Hinkle said the clerk needed to accept same-sex marriage applications in Washington County as a matter of the law, and that clerks across the state needed to heed his words.
“Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case,” Hinkle said. “But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”
Hinkle added italics for emphasis to his order, to make sure the legal counsel for Florida’s clerks understood his point, and after the order became public, the attorneys for the state clerks said the clerks should start accepting same-sex marriage licenses across the state. The ruling goes into effect at 12:01 a.m. on Tuesday, and it remains to be seen if all clerks will accept the license applications.
But the biggest day for the future of same-sex marriage bans will be on Friday, as the Supreme Court meets in a private conference to decide if it will take a new set of cases to clarify its June 2013 ruling in the United States v. Windsor case.
Back then, a divided Court didn’t directly decide the legality of same-sex marriage across the country or within states. The constitutional question settled by the Court, in Justice Anthony Kennedy’s majority opinion, was that the federal Defense of Marriage Act was unconstitutional because it denied rights under the Fifth Amendment to same-sex couples married under state laws.
However, federal and state judges in numerous states have used Windsor and some other Court decisions to overturn same-sex marriage bans that were approved by voters in state constitutional amendments or by popular vote.
As of Tuesday, same-sex marriages will be legal in 36 states and the District of Columbia as the legal process continues in the Supreme Court. But on Friday, the Justices will hear appeals from the Sixth Circuit and Louisiana on about five rulings upholding same-sex marriages bans.
On November 6, 2014, a decision of the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit ruled that appeals about state-approved same-sex marriage bans should be left to the political processes, with voters and legislatures deciding the issue.
The ruling from Judge Jeffrey Sutton went against a series of rulings against the bans in other federal courts, setting up a likely acceptance of the cases in the Supreme Court.
If at least four Justices vote in private to accept the same-sex marriage cases, the announcement could come late on January 9, or on Monday, January 12, when the Court is scheduled to release orders. The Court has two other conference days scheduled in January, but a further delay would make it less likely that the case will be argued in the current term, which ends in late June 2015.
The stakes in any same-sex marriage decisions with national implications are high. According to the National Council of State Legislatures, 23 states have allowed same-sex marriages through judicial rulings, but 31 states have constitutional or statutory provisions on the books that explicitly define marriage as between a man and a woman.
