When U.S. District Judge Robert Hinkle ruled on August 21 in Brenner v. Armstrong and Grimsley v. Armstrong that Florida’s ban on same-sex marriage was unconstitutional, he stayed his preliminary injunction until January 5, 2015, to give the state a chance to appeal to the 11th Circuit. He indicated that if the state wanted to have the decision stayed longer until the Court of Appeals could decide on the merits, it should ask the Court of Appeals for a longer stay. The state filed its notice of appeal, accompanied by a Motion to Extend Stay of Preliminary Injunction Pending Appeal and for Expedited Treatment of This Motion.”
This afternoon, December 3, a three-judge panel of the 11th Circuit issued a terse order, as follows: “Appellants’ request for expedited review of the Motion is granted. Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion. The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.”
This means, implicitly, that the 11th Circuit panel has concluded that the factors normally considered in deciding whether to stay a ruling pending appeal do not balance out in support of the state’s motion. And, of course, the first and most important factor is whether the Appellant is likely to prevail on the merits of its appeal. They would also consider the harms to the plaintiffs if the district court’s order is stayed further, and the harms to the state if the injunction is allowed to go into effect. And, of course, they would ask whether such harms, if any, are irreparable by after-the-fact money damages. Finally, they would consider the public interest in granting or denying a stay. The district court had more or less resolved these questions against the state, but was willing to give the state the benefit of a chance to get an appellate panel to consider them as well before the decision goes into effect. This means that unless the state is able to get a stay issued by a “higher authority” — the U.S. Supreme Court — marriage equality would go into effect in Florida on January 6, 2015, without a ruling on the merits by the 11th Circuit. This seems like a rather strong signal by the 11th Circuit about how they think a merits ruling from a panel of their court would turn out.
On the other hand, this may be a high-stakes game of “chicken” being played by the 11th Circuit panel. They may be kicking the question of a stay to the Supreme Court (assuming the state will petition for one, which would seem consistent with Attorney General Bondi’s position on these cases) on the theory that the national momentum has been going in one direction, with the notable exception of the 6th Circuit, and that presentation of a stay application to the Supreme Court coming out of a circuit that has not yet ruled on the merits of marriage equality will require the Court to show its hand, perhaps a bit prematurely, in light of the pending petitions for certiorari from the 6th Circuit and Louisiana decisions.
We are now running into interesting timing issues in the national campaign for marriage equality. The Florida stay expires at the end of business on January 5. On January 9, the 5th Circuit is scheduled to hear oral arguments in the Texas and Louisiana cases and, perhaps, the Mississippi case as well, since the state has noticed its appeal there. Later in January, one expects the Supreme Court will be considering in conference the certiorari petitions from the 6th Circuit states (Ohio, Michigan, Kentucky, Tennessee) and Louisiana (petition filed by Lambda Legal on behalf of the plaintiffs). If the Supreme Court grants cert in one or more cases, there is the question whether the cases can be argued and decided during this term of the Court (by the end of June 2015), or whether by the time the Court makes a cert decision the argument docket for this term will be filled and the cases will be scheduled for argument in the fall? If the former eventuates, then the 5th and 11th (and most likely the 8th) Circuits may never have to rule on marriage equality, because they would probably put all appeals on hold while waiting for a ruling by the Supreme Court.
If the Supreme Court refuses to stay the Florida injunction, that would send a clear signal to the district judges in Alabama and Georgia who are now sitting on summary judgment motions in marriage equality cases, that if they rule in favor of plaintiffs, there is no need to stay their rulings, because the 11th Circuit and the Supreme Court are unlikely to stay them. So marriage equality might spread in the 11th Circuit would ever achieving a ruling from the Court of Appeals. (Wishful thinking? It’s a pretty conservative circuit.) And if the Supreme Court were to grant the Louisiana cert petition, the 5th Circuit would probably refrain from ruling in the cases pending there.
Perhaps the worst scenario for getting real progress expeditiously would be if the Supreme Court doesn’t grant a cert petition until too late to schedule arguments this spring. Then we all play the waiting game until next fall and might not see a final marriage equality ruling until sometime next winter, most likely early in 2016. And it is possible that none of the remaining circuits would rule on pending appeals so long as a case is scheduled for argument before the Supreme Court.