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December 16, 2014 Practice Points

Marriage Equality: Progress in Unexpected Places

By Nick Kacprowski

Two significant events have occurred in the month since the last News & Developments piece on marriage equality in November. The first came out of the Eleventh Circuit Court of Appeals in Brenner v. Armstrong, No. 14-14061, (11th. Cir.) on December 3, 2014. The Brenner appeal arose out of a ruling on August 21, 2014, from the United States District Court for the Northern District of Florida, Tallahassee Division, Judge Robert Hinkle presiding. In that ruling, the court considered a challenge to Florida's same-sex marriage ban. The defendants moved to dismiss the case, and the plaintiffs moved for a preliminary injunction prohibiting enforcement of the ban.

The court denied the defendants' motion to dismiss and granted the motion for preliminary injunction. The order, however, issued a rather quirky stay of the injunction. At the time, there were pending same-sex marriage stays in the Fourth and Tenth Circuits, and the court held that its preliminary injunction would be stayed for 91 days after the stays then in place were lifted in the Fourth and Tenth Circuit cases. The court was concerned that "the opportunity for same sex marriages in Florida, once opened, will not close again," and wanted to provide a process whereby the defendants had 91 days to seek a further stay if the Fourth and Tenth Circuit stays lifted.

The district court's stay had one exception. One of the plaintiffs was widowed when her partner of 47 years died. The couple had been married in New York in 2011. The widow's primary income came from social security benefits, which she used to support both herself and the extremely elderly parents of her wife. She wished to be recognized as her wife's spouse for purposes of social security benefits and to have the wife's death certificate amended to recognize her as the spouse. The court denied the stay and allowed the injunction to take immediate effect as to those issues.

The stays in the Fourth and Tenth Circuits were lifted on October 6, 2014, when the U.S. Supreme Court declined to grant certiorari in those cases. The Florida trial court's decision was thus set to expire on its own terms on January 5, 2015. The defendants in the Brenner case filed for an extension of the stay on November 18, 2014, and for expedited consideration of the extension. On December 3, 2014, a three-judge panel of the Eleventh Circuit denied the request to extend the stay with no discussion, noting that the stay of the district court's order would expire on January 5, 2015. Barring an unlikely intervention from the U.S. Supreme Court before that date, Florida will be enjoined from denying marriage benefits to same-sex couples as of January 5, 2015. Judges Frank Hull, Charles Wilson, and Adalberto Jordan comprised the Eleventh Circuit panel. Judge Hinkle of the Northern District of Florida, and Eleventh Circuit Judges Hull and Wilson, are Bill Clinton appointees, and Judge Jordan is a Barack Obama appointee.

A United States district court in Mississippi has also invalidated that state's ban on same-sex marriage. The opinion for the United States District Court for the Southern District of Mississippi issued on November 25, 2014, in the case Campaign for Southern Equality et al. v. Bryant, Cause No. 3:14-CV-818-CWR-LRA, (S.D. Miss. Nov. 25, 2014). In that case, the court held that Mississippi's ban on same-sex marriage violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution and is therefore invalid. The Fifth Circuit now has before it opinions out of Mississippi and Texas invalidating same-sex marriage bans in those states, and an opinion in Louisiana upholding a marriage ban. It is scheduled to hear oral arguments on the three appeals on January 9, 2015.

Keywords: litigation, LGBT, same-sex marriage, Fifth Circuit, Eleventh Circuit, Mississippi, Florida

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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