Judge Hinkle's Motion

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

JAMES DOMER BRENNER et al., Plaintiffs, v.

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RICK SCOTT, etc., et al., Defendants. _________________________________/

SLOAN GRIMSLEY et al., Plaintiffs, v.

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RICK SCOTT, etc., et al., Defendants. _________________________________/

ORDER DENYING THE MOTIONS TO ALTER THE STAY

A stay of the preliminary injunction entered in these consolidated cases is currently in effect through January 5, 2015. Each side has moved to alter the stay—the plaintiffs to end it sooner, the defendants to extend it until their appeal is Cases No. 4:14cv107-RH/CAS and 4:14cv138-RH/.CAS

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resolved. This order denies the motions, leaving the stay in effect through January 5.

I The issue on the merits is the constitutionality of Florida’s refusal to allow same-sex marriages or to recognize same-sex marriages lawfully entered elsewhere. The order of August 21, 2014, held the challenged Florida provisions unconstitutional.

The order relied in part on the Supreme Court’s decision in United States v.

Windsor, 133 S. Ct. 2675 (2013), and three circuit decisions that were rendered after Windsor. The circuit decisions were Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); and Kitchen v.

Herbert, 755 F.3d 1193 (10th Cir. 2014). Now two more circuits have reached the same result. See Latta v. Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct. 7, 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014).

The August 21 order granted a preliminary injunction for the plaintiffs but stayed the order in substantial part. The order said: A four-part test governs stays pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). See also Venus Lines Agency v. CVG Industria Venezolana De Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir. 2000) (applying the same test).

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The four-part test closely tracks the four-part test governing issuance of a preliminary injunction. Because the governing four-part tests are so similar, it is a rare case in which a preliminary injunction is properly stayed pending appeal. This is the rare case.

As set out above, the state’s interest in refusing to allow or recognize the plaintiffs’ same-sex marriages is insufficient to override the plaintiffs’ interest in vindicating their constitutional rights. The public interest does not call for a different result. So the preliminary injunction will issue, eliminating any delay in this court, and allowing an enjoined party to go forward in the Eleventh Circuit.

But at the stay-pending-appeal stage, an additional public interest comes into play. There is a substantial public interest in implementing this decision just once—in not having, as some states have had, a decision that is on-again, off-again. This is so for marriages already entered elsewhere, and it is more clearly so for new marriages. There is a substantial public interest in stable marriage laws. Indeed, there is a substantial public interest in allowing those who would enter same-sex marriages the same opportunity for due deliberation that opposite-sex couples routinely are afforded.

Encouraging a rush to the marriage officiant, in an effort to get in before an appellate court enters a stay, serves the interests of nobody.

A stay thus should be entered for long enough to provide reasonable assurance that the opportunity for same-sex marriages in Florida, once opened, will not again close. The stay will remain in effect until stays have been lifted in Bostic, Bishop, and Kitchen, and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the Eleventh Circuit or Supreme Court.

Order of August 21, 2014, ECF No. 74, at 28-29.

On October 6, 2014, the Supreme Court denied certiorari in Bostic, Bishop, and Kitchen. The stays were lifted the same day. See Bostic v. Schaefer. No. 141167, 2014 WL 4960335 (4th Cir Oct. 6, 2014); Bishop v. Smith, No. 14-5003,

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2014 WL 4960523 (10th Cir. (Oct. 6, 2014); Kitchen v. Herbert, No. 13-4178, 2014 WL 4960471 (10th Cir. Oct. 6, 2014).

The stay entered in this case on August 21, by its terms and the operation of Federal Rule of Civil Procedure 6(a)(1)(C), remains in effect until the end of the day on January 5, 2015. That is the first workday at least 90 days after October 6, 2014.

II The plaintiffs assert the stay should be lifted immediately or in any event within 7 days. This would leave the Eleventh Circuit insufficient time to make a considered judgment on whether the stay should remain in place and thus would be inconsistent with the public interest in implementing just once the constitutional decision on same-sex marriage in Florida. This order denies the plaintiffs’ motion.

III The defendants assert the stay should remain in effect for as long as their appeal in these cases remains pending. But the plaintiffs have a substantial interest in exercising their constitutional rights without undue and indefinite delay. The public interest in implementing the constitutional decision just once is sufficient to support the 90-day delay so that the Eleventh Circuit can consider the matter with all deliberate speed.

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That public interest will support a longer stay only if, having considered the matter, the Eleventh Circuit concludes that the defendants have a substantial likelihood of success on appeal. In light of the unbroken line of circuit decisions striking down bans on same-sex marriage and the Supreme Court’s decision to leave those decisions intact, I conclude that a longer stay is not warranted.

The decision not to extend the stay is consistent with the Supreme Court’s treatment of this issue. The stays the Supreme Court put into effect prior to October 6 were vacated on that day. Since October 6, no Supreme Court stay has been in effect for more than two days, and no Supreme Court stay is now in place.

See Parnell v. Hamby, No. 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014) (denying a stay of a district-court decision holding a state’s same-sex marriage ban unconstitutional); Otter v. Latta, No. 14A374, 2014 WL 5094190 (U.S. Oct. 10, 2014) (denying a stay of a circuit-court decision holding a state’s same-sex marriage ban unconstitutional and vacating a stay entered two days earlier). No circuit that has decided the same-sex marriage issue on the merits has stayed its ruling.

One other matter deserves mention. The defendants say I should stay this federal decision so that the Florida Supreme Court can rule in pending state cases.

But the issue here is a federal constitutional issue. The Florida Supreme Court has the last word on state law, but here state law is clear; there is no dispute over state

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law. The issue here arises under the United States Constitution. The United States Supreme Court will make the final ruling that definitively resolves this federal constitutional issue. And if the United States Supreme Court does not take up the issue, the final ruling that governs in Florida (and in Alabama and Georgia) will be the decision of the United States Court of Appeals for the Eleventh Circuit.

Waiting for a decision of the Florida Supreme Court will serve no purpose.

IV For these reasons, IT IS ORDERED: The motions to alter the stay, ECF Nos. 87, 88, and 92, are DENIED. The stay remains in place and will expire at the end of the day on January 5, 2015.

SO ORDERED on November 5, 2014. s/Robert L. Hinkle United States District Judge

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