With a week to go before a federal ruling that struck down Florida’s same-sex marriage ban officially kicks in, uncertainty over what exactly that ruling requires continues to cloud the Sunshine State.
Late Monday, Florida’s Republican Attorney General Pam Bondi filed a short legal brief stating that if a federal judge who overturned the state’s same-sex marriage ban earlier this year intended his ruling to apply throughout Florida’s 67 counties, he would have to issue a clarification explicitly saying so.
The state’s legal filing, submitted to U.S. District Judge Robert L. Hinkle at his request, argued that his August ruling -- as written -- required only one clerk named in the lawsuit to grant two plaintiffs in Washington County a marriage license on Jan. 6, the day Hinkle’s order takes effect. Bondi’s brief, however, also left open the likely possibility that Judge Hinkle would indeed clarify he meant to compel all county clerks in the state to issue marriage licenses to same-sex couples.
"It was an extremely weak response."'
“It was an extremely weak response,” said Shannon Minter, legal director of the National Center for Lesbian Rights, of Bondi’s court filing. “The state essentially punted, telling the judge, ‘You can do whatever you wish, and if you want to clarify that your ruling applies statewide, we understand you have the power to do that.’”
Still, until that confirmation comes, clerks and other county officials who refuse to enforce Florida’s same-sex marriage ban next week remain vulnerable to intimidation. Greenberg Traurig, a private law firm that represents the state association of Florida Court Clerks & Comptrollers, said in a recent memo that the only clerk bound to Judge Hinkle’s August ruling was Washington County’s Lora Bell since 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.
Citing that analysis, a majority of Florida’s clerks who participated in an Associated Press inquiry said they would not be granting marriage licenses to same-sex couples on Jan. 6. Florida Family Action (FFA) then announced on Tuesday that it had filed two lawsuits against three elected officials, including Orlando Mayor Buddy Dyer, because they had expressed plans to participate in same-sex couples’ weddings next week.
"All three of these officials have shown great contempt and disrespect for the rule of law and are behaving irresponsibly and unprofessionally,” said John Stemberger, FFA president, in a statement. “The federal court decision is clear that it only applies narrowly to the two plaintiffs and only in Washington County. Elected officials must be held accountable to the law and to the constitution they have sworn to uphold.”
Minter anticipates the FFA lawsuits will “disappear” once Judge Hinkle issues his clarification, which is expected in the coming days. But it’s not 100% certain what that clarification will say.
“Judge Hinkle authored a very strong opinion in his [August] order that I think clearly encompasses the entire state,” said Minter. “But it’s ultimately up to him.”
In August, Judge Hinkle -- a President Bill Clinton appointee -- declared Florida’s same-sex marriage ban unconstitutional, stating that “liberty, tolerance, and respect [were] not zero-sum concepts.” He stayed the effects of his ruling pending appeal until the end of day on Jan. 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 Florida to become the 36th state where gay and lesbian couples could legally wed.
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Out of the dozens of federal rulings in favor of marriage equality since the collapse of the Defense of Marriage Act (DOMA) in 2013, none have faced the same kind of dispute as Judge Hinkle’s ruling is facing now.