In an 18-page filing, Bondi and other states attorneys lay out their arguments for why the Supreme Court should issue a stay on a federal district court ruling against the ban on same-sex marriage in her state for the duration of appeal.
“It is true that this Court recently denied certiorari in cases invalidating traditional marriage laws,” Bondi writes. “But those denials came before the Sixth Circuit established the current circuit split, which enhanced the need for a decision from this Court. Because this Court is unlikely to allow the circuit split to continue, it is likely that the Court will grant certiorari in the Sixth Circuit cases.”
The U.S. Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, this month refused an earlier stay request from Bondi on the district court ruling, saying same-sex marriage can begin in the state “at the end of the day” on Jan. 5.
But Bondi, a Republican who’s been defending the ban in court, writes the language in the Eleventh Circuit order is the reason why justices should issue a stay before it takes effect.
“The Eleventh Circuit’s recent decision denying a longer stay has created statewide confusion, with news reports now suggesting that the end of the stay will lead to statewide issuance of same-sex marriage licenses, even though only one of Florida’s 67 clerks of court is a party below,” Bondi writes. “Some clerks who are not parties to this litigation have announced that, absent a stay, they will begin issuing licenses on January 6.”
The filing was submitted to U.S. Associate Justice Clarence Thomas, who’s responsible for stay requests in the Eleventh Circuit. He can decide the matter himself or refer the filing to the entire court.
It remains to be seen what action Thomas or the court will take on the request. After its refusal to review federal appeals court decisions in favor of same-sex marriage in October, the court denied stay requests on subsequent rulings in favor of marriage equality in Alaska, Idaho, Kansas and South Carolina.
But the court denied stays in Kansas and Idaho only after the justices to which the requests were submitted issued temporary holds. Additionally, unlike the stay requests previously denied by the Supreme Court, the Florida filing comes from a jurisdiction where no federal appeals court has yet to make a decision on the merits of state bans on same-sex marriage.
Thomas has expressed discontent with the way the court has handled the marriage issue, saying “for reasons that escape me” the court hasn’t taken up review of federal appeals court decisions striking down bans on same-sex marriage or granted stay requests in the aftermath of those rulings.
UPDATE: Late Tuesday, Thomas called for a response to be filed regarding the stay request by Thursday, Dec. 18 at 5 p.m. EST.