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Earlier today, the United States Supreme Court declined to hear seven cases concerning same sex marriage. The cases (three from Virginia, one from each of Wisconsin, Utah, Indiana, and Oklahoma) stemmed from Federal District Court decisions in which state bans on same sex marriage (either by state constitution or statute) were found to violate the Constitution of the United States. These cases were appealed to one of three different United States Courts of Appeal (the Fourth, Seventh, and Tenth Circuits). In all seven cases, the Courts of Appeal upheld the lower court decision.
By declining to hear the cases, the U.S. Supreme Court allowed the rulings of the circuit and district courts that overturned same sex marriage bans in those five states to stand. This means that the Courts of Appeal rulings stand, but that the rulings are now persuasive authority for all of the states in the Fourth, Seventh, and Tenth Circuits. If there are other states within those circuits that have state law bans on same sex marriage, then it is likely that such bans will also be found to violate the U.S. Constitution.
In the past year, at least five state courts in Florida have held that Florida’s ban on same sex marriage violates the U.S. Constitution. In addition, the U.S. District Court for the Northern District of Florida also ruled, in Brenner v. Scott, that Florida’s ban on same sex marriage violates the U.S. Constitution. That federal court ruling is currently on appeal to the Court of Appeal for the Eleventh Circuit (which encompasses Florida, Georgia and Alabama).
Today’s action (or inaction) by the U.S. Supreme Court does not directly impact Florida. If the Court of Appeal for the Eleventh Circuit upholds the Brenner v. Scott decision, then Florida’s ban on same sex marriage would be in violation of the U.S. Constitution unless and until the U.S. Supreme Court holds otherwise. However, the weight of recent case law indicates that Florida’s ban would be found to violate the U.S. Constitution. Conversely, if the Court of Appeal for the Eleventh Circuit overturned the ruling in Brenner v. Scott, then Florida’s ban would remain in place. If that were to happen, then it seems likely that the U.S. Supreme Court would hear the case as such a ruling would make the Eleventh Circuit the only Court of Appeal to uphold such a ban.