Print URL: http://www.tbo.com/news/crime/judge-all-florida-clerks-have-duty-to-issue-same-sex-marriage-licenses-20150101/

Judge: All Florida clerks have duty to issue same-sex marriage licenses

By JIM SAUNDERS
The News Service of Florida
Published: January 1, 2015 Updated: January 1, 2015 at 11:56 PM
Kimmy Denny and her partner, Barb Lawrence of Palm Harbor, Fla., wait outside a court hearing on gay marriage in Miami in July. A federal judge says all Florida counties have a duty to issue same-sex marriage licenses on Jan. 6. THE ASSOCIATED PRESS FILE

TALLAHASSEE — Pointing to his earlier “explicit ruling that Florida’s same-sex marriage ban is unconstitutional,” a federal judge issued an order Thursday that likely clears the way for gay marriages to start across the state.

U.S. District Judge Robert Hinkle’s order came amid a legal debate about the scope of his ruling in August that struck down a gay-marriage ban approved by Florida voters in 2008. A stay on that ruling expires at the end of the day Monday, allowing same-sex marriages to start Tuesday.

The legal debate during the past two weeks centered on whether Hinkle’s original ruling, which involved a preliminary injunction against the ban, applied only to issuing a marriage license to two Washington County men who are plaintiffs in the case or whether it required court clerks across the state to start issuing licenses.

In his order Thursday, Hinkle wrote that his broad ruling about the unconstitutionality of the ban requires the Washington County clerk to issue licenses to other same-sex couples.

“The preliminary injunction now in effect … does not require the clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the clerk to issue such licenses,” Hinkle wrote. “As in any other instance involving parties not now before the court, the clerk’s obligation to follow the law arises from sources other than the preliminary injunction.”

Pat Frank, clerk of the Circuit Court and comptroller for Hillsborough County, said she will issue licenses to same-sex couples on Jan. 6. “He made it very clear,” Frank said of Hinkle’s order. “He said all clerks are covered.”

Frank said she is ready to go, and she is prepared to use the park across from her office if the numbers require it. “I was anticipating this,” she said Thursday evening.

She said her office has not been inundated with calls or questions about licenses, but that is probably because couples have been reading the paper and watching the news, and are staying on top of the situation. Her office will be open today.

People have been “in a state of limbo” on this issue, unable to plan for the future, Frank said. “I’m glad that Florida has finally joined the ranks of rationality.”

Hinkle warned that clerks who don’t start issuing the licenses when the stay expires could face lawsuits or other legal consequences.

❖ ❖ ❖

The four-page ruling drew different interpretations after being released on New Year’s Day.

Attorney General Pam Bondi, whose office has defended the ban, issued a statement that says Hinkle’s ruling does not require clerks to issue licenses to same-sex couples other than the plaintiffs in the case but allows clerks to do so.

Bondi said she would not seek to block clerks from issuing licenses.

“This office has sought to minimize confusion and uncertainty, and we are glad the court has provided additional guidance,” Bondi said. “My office will not stand in the way as clerks of court determine how to proceed.”

Equality Florida, a group that has helped lead the fight against the ban, and the National Center for Lesbian Rights said Hinkle’s order should lead to clerks throughout the state issuing marriage licenses to same-sex couples.

“Today’s ruling confirms that all Florida officials, including county clerks, must comply with the federal Constitution and must therefore treat same-sex couples equally under the law by issuing marriage licenses to qualified same-sex couples and by treating their marriages equally in all respects,” said Shannon Minter, legal director for the National Center for Lesbian Rights.

But John Stemberger, president of Florida Family Action Inc., which spearheaded efforts to pass the gay-marriage ban, said on Twitter that Hinkle’s order is “being widely misinterpreted” and does not have such a broad effect.

“Judge Hinkle has no jurisdiction outside the Northern District of Florida to bind any clerk outside of North Florida,” Stemberger, who is a lawyer, tweeted. “Clerks outside of North Florida are required to obey current law (banning same-sex marriage) & are still subject to all the penalties for violating it.”

❖ ❖ ❖

The American Civil Liberties Union of Florida issued a statement saying, in part, it is prepared to go to court on behalf of any gay couples who do not receive marriage licenses.

“We expect all clerks to respect the ruling,” said Daniel Tilley, an attorney for the ACLU, which has played a key role in challenging the ban. “But if not, we are committed to ensuring marriage equality in all 67 counties in Florida, and we would like to hear from any couples that are wrongfully denied a license after the stay expires.”

The legal debate about the scope of Hinkle’s ruling in August came after the Florida Court Clerks & Comptrollers issued a memo in December saying the ruling only applies to issuing a marriage license to the Washington County men who are named plaintiffs in the case. The memo also warns clerks that they could face prosecution if they issue marriage licenses to other gay couples.

The ACLU and other supporters of same-sex marriage vehemently disputed the conclusions in the memo. Ultimately, an attorney for Lora Bell, the Washington County clerk, asked Hinkle for clarification, leading to Thursday’s order.

An Associated Press survey of Florida’s county clerks last week found that an overwhelming majority didn’t plan to issue marriage licenses to same-sex couples starting Tuesday until they had further legal clarity.

In a brief filed early last week, Bondi’s office said Hinkle should “provide appropriate clarification” if he intended for his ruling to apply beyond Washington County. The brief also argued that clerks are independent officials under the Florida Constitution and that Hinkle’s initial ruling took aim at other statewide officials under Gov. Rick Scott who are not connected to clerks.

While awaiting Hinkle’s clarification, a handful of Florida county clerks said they would stop offering courthouse wedding ceremonies, partly to avoid performing those ceremonies for same-sex couples.

The clerks of court in Duval, Clay and Baker counties said they would have no choice but to issue marriage licenses to same-sex couples when Florida’s ban on same-sex marriage expired. However, they decided to end all courthouse weddings to avoid performing those ceremonies for same-sex couples, among other reasons.

The clerks in Santa Rosa and Okaloosa counties made similar announcements.

Information from The Associated Press was used in this report.