The Supreme Court allowed a Native American tribe in Florida on Wednesday to offer online sports betting on mobile devices throughout the state.
The court’s brief order did not give reasons for its ruling, which is typical when the justices act on emergency applications. A separate challenge is pending before the Florida Supreme Court.
A 2018 Supreme Court decision transformed sports betting in the United States by striking down a federal law that had effectively banned such wagering in most states. Florida’s voters promptly passed a referendum that said expansions of legal gambling would require a further referendum — one that has not materialized.
But that 2018 measure made an exception for “the conduct of casino gambling on tribal lands” when approved under a federal law. Taking a broad view of that phrase, the state entered into a compact with the Seminole Tribe of Florida in 2021, saying that anyone physically present in Florida could place mobile bets at its casinos so long as the computer servers handling the transactions were on tribal land.
Such wagers, the 2021 compact said, “shall be deemed to take place exclusively where received.”
Brick-and-mortar casinos sued the federal government, saying it should have blocked the deal. Judge Dabney L. Friedrich of the Federal District Court in Washington agreed, calling the key phrase in the compact a “fiction.”
“When a federal statute authorizes an activity only at specific locations,” she wrote, “parties may not evade that limitation by ‘deeming’ their activity to occur where it, as a factual matter, does not.”
A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed Judge Friedrich’s decision. The panel said that the central questions in the case “are best left for Florida’s courts to decide.”
In their emergency application asking the justices to intervene, the Magic City Casino in Miami and the Bonita Springs Poker Room said the 2021 compact violated federal laws and the equal protection clause of the Constitution. The compact, the casinos’ lawyers wrote, “gives an Indian tribe a statewide monopoly to conduct online sports gaming while simultaneously making such conduct a felony if done by anyone of a different race, ancestry, ethnicity or national origin.”
In June, the Supreme Court sidestepped an equal protection challenge to another federal law, the Indian Child Welfare Act. But Justice Brett M. Kavanaugh, in a concurring opinion, wrote that “in my view, the equal protection issue is serious.”
Justice Kavanaugh issued a statement in the gambling case on Wednesday making a similar point.
“To the extent that a separate Florida statute (as distinct from the compact) authorizes the Seminole Tribe — and only the Seminole Tribe — to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues,” he wrote. “But the state law’s constitutionality is not squarely presented in this application.”
Justice Kavanaugh added: “The Florida Supreme Court is in any event currently considering state-law issues related to the tribe’s potential off-reservation gaming operations.”
Elizabeth B. Prelogar, the U.S. solicitor general, wrote in response that “the compact in this case is an agreement between two sovereigns — the State of Florida and the Seminole Tribe — concerning the tribe’s own conduct of commercial gaming operations within the state.”
“That agreement between sovereigns does not implicate race-based equal protection concerns,” she wrote. “A sovereign government has no race.”
Ms. Prelogar wrote that the lawfulness of the 2021 compact should be sorted out by the Florida Supreme Court, which is considering a separate challenge.
“If the Florida Supreme Court concludes that the Florida Legislature’s authorization of the placement of wagers outside Indian lands is not permissible under the Florida Constitution, that would afford applicants the relief they seek,” she wrote. “That pending case provides the appropriate forum to resolve applicants’ claims based on the meaning of state law.”