It looks like same-sex couples hoping for clarification as to whether they’ll soon be able to marry in the Sunshine State will have to wait just a little bit longer – but they’ll probably be pleased with the outcome.
Speaking as the official counsel for Florida’s Secretary of the Department of Management Services, the business arm of Florida’s government, Republican Attorney General Pam Bondi said late Monday that if a federal judge wanted his ruling in favor of marriage equality to apply statewide, he would have to explicitly say so.
The state’s court filing, ordered by U.S. District Judge Robert L. Hinkle, doesn’t exactly clear up a rising tide of confusion over whether all of Florida’s 67 clerks of court will have to issue marriage licenses to same-sex couples beginning next week. But it does offer marriage equality supporters some encouragement in that Bondi did not try to limit the number of counties affected. By punting the decision back to Judge Hinkle, who issued a strong endorsement of same-sex couples’ right to wed earlier this year, Bondi effectively got out of Florida’s way as it marches toward becoming the 36th state to legalize marriage equality.
“This Court is best situated to determine the reach of its own order,” said Bondi Monday in a short filing submitted two hours before the midnight deadline. “If the Court intends for paragraph 4 to bind a Florida clerk of court (or all Florida clerks of court), additional specificity may be appropriate to place any such clerk on proper notice.”
Judge Hinkle, a President Bill Clinton appointee, struck down Florida’s same-sex marriage ban in August, stating that “liberty, tolerance, and respect [were] not zero-sum concepts.” He stayed the effects of his ruling until the end of day on January 5. Both the 11th Circuit Court of Appeals, which has jurisdiction over Florida, and the U.S. Supreme Court then refused to extend that stay, clearing the way for gay and lesbian couples to begin marrying in the Sunshine State on Jan. 6.
But not everyone agreed that Florida was on its way to legalizing marriage equality. Greenberg Traurig, a private law firm that represents the state association of Florida Court Clerks & Comptrollers, said in a memo last week that the only clerk bound to Judge Hinkle’s August ruling was Washington County’s Lora Bell because she alone was named in the federal lawsuit. Any other clerk who issued marriage licenses to same-sex couples, argued Greenberg Traurig, would be in violation of the state statute prohibiting marriage equality – an offense that in Florida carries as much as $1,000 in fines and up to one year in jail.
Based off that analysis, only seven out 53 clerks in the state who participated in an Associated Press inquiry said they would be granting marriage licenses to same-sex couples on Jan. 6, the day Judge Hinkle’s ruling in favor of marriage equality takes effect. Meanwhile, the National Center for Lesbian Rights and Equality Florida issued a counter memo last week stating that all Florida county clerks were “compelled and certainly permitted to issue marriage licenses to same-sex couples beginning January 6.”
With the clock ticking, the Clerk of Court of Washington County asked Judge Hinkle for clarification, prompting Hinkle to set a Monday deadline for the state to respond. Judge Hinkle will likely clarify the scope of his ruling sometime in the coming week.
Marriage equality got off to a staggered start in Florida with state judges’ overturning the ban in Broward, Miami-Dade, Monroe, and Palm Beach counties earlier this year. Hinkle was the fifth judge in Florida to rule in favor of marriage equality, but the first federal judge with jurisdiction over the entire state to do so. Throughout the losses, Republican Attorney General Pam Bondi held fast to Florida’s ban, helping to recently earn her the title, “Loser of the Year,” from Florida’s largest newspaper, the Tampa Bay Times. As Adam C. Smith, the paper’s political editor wrote:
“Bondi’s clumsy communication skills and relentless defense of Florida’s gay marriage ban have made her a modern-day Anita Bryant. Antagonizing Florida’s gay voters over same-sex marriage and Hispanic voters over immigration reform ensures Bondi has a bright political future ahead of her — if she moves to Mississippi.”