Florida Clerks Can Start Issuing Same-Sex Marriage Licenses

A federal judge struck down Florida’s ban on same-sex marriage recently and both the appeals court and Supreme Court refused to issue a stay of that ruling, but there has been much confusion as to whether that ruling applied outside of the country where the suit was filed. A state judge has now ruled that it does, clearing the way for clerks to issue licenses.

Circuit Court Judge Timothy Shea issued his court order filed on Wednesday in response to an emergency petition by the Orange County clerk of court, one of many officials in the state confused about where gay marriage is permitted to begin on Jan. 6.

The U.S. Supreme Court earlier this month declined to extend a stay on a federal judge’s decision to strike down the state’s ban, allowing Florida to become the 36th state with legal gay marriage.

But a state clerks association has advised officials that the high court’s order, stemming from an August ruling by U.S. District Judge Robert Hinkle in Florida’s Northern District, may apply only to one rural county named in the case.

Shea disagreed with that interpretation. Saying Hinkle’s ruling may be considered “the law of Florida,” Shea said Orange County Clerk of Court Tiffany Moore Russell could begin issuing marriage licenses on Jan. 6 after the federal judge’s stay expires.

This should clear the way for other clerks to do so as well. Given the ambiguity, most county clerks said they were going to hold off issuing such licenses until there was a clear court order on it. So gay couples should be able to start getting married next week.

Update: Now the federal judge who issued the original ruling has issued an order making clear that all counties in Florida must begin issuing same-sex marriage licenses on Jan. 6.

Today, Judge Hinkle ruled that the U.S. Constitution “requires” clerks in all 67 Florida counties to issue marriage licenses to same-sex couples who wish to marry.

“The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants,” Hinkle wrote today. “But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”

“Reasonable people can debate whether the ruling in this case was correct and who it binds,” Hinkle’s ruling adds. “There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.”

He extended a warning as well.

“And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.”

That should settle that issue. A Christian right group in Florida has filed a federal lawsuit over this, but given that the Supreme Court already refused to issue a stay, there is little chance that will succeed.

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  • dobby
  • lordshipmayhem

    They don’t have to. They can always quit their jobs. I’m sure that with the unemployment rate in Florida, replacements should be easy enough to hire.

  • hunter

    The “confusion” can be laid at the door of AG Pam Bondi and some numbskull from Greenberg Traurig, who issued an opinion for the clerks’ association that any clerk outside of Washington County could be prosecuted for issuing a marriage license to a sames-sex couple. (They’ve since done a 180.)

  • hunter

    Oh, and PS: Of course, one has to take into consideration the number of clerks who wanted to be confused.

  • John Pieret

    Here is a better explanation of the situation from SCOTUSblog than that in the <Charisma article (taken exclusively from the legal geniuses trained by Mat Staver, the dumbest lawyer … etc.):

    http://www.scotusblog.com/2015/01/same-sex-marriage-close-to-reality-in-florida/

    Essentially, Judge Hinkle ruled that, while the preliminary injunction applied only to the parties before him, it was based on the Constitution and the Supreme Court found that there was no reason to delay implementation of the ruling.

    The judge accomplished the wide sweep for his action by warning other clerks that they faced the possibility of being sued, losing in court, and then having to pay civil damages and legal costs, including attorney’s fees.

    The conditional immunity of government officials, protecting them from personal liability for constitutional violations, does not apply if the official has clear reason to know his/her action was unconstitutional and, nonetheless, proceeds with the action. That is probably why the attorneys for the Florida Association of County Clerks changed their opinion and advised that all clerks “should follow the judge’s ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.”

    In another development, “Florida Attorney General Pamela Bondi, who had made several efforts to delay same-sex marriage, said in a statement that her office now would ‘not stand in the way as clerks of court determine how to proceed.’”

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Typical Liberal Big Government, forcing people to get gay married throughout Florida illegally instead of in just one county illegally!

    When is this country going to rise up and free its citizens from tyranny, by enacting a National Hetero-Only Marriage Amendment?

  • acroyear

    Supposedly, Duval and Clay County (Jacksonville and its southern suburbs, where I was born and lived ’til I was 14) are solving the problem of same-sex marriages in courts by simply stopping the process of performing in-court weddings entirely, and trying to pass it off as if they were planning to do it even before the issue of equality came up.

    I don’t miss living down there. Not at all.

  • thebookofdave

    When is this country going to rise up and free its citizens from tyranny, by enacting a National Hetero-Only Marriage Amendment?

    As long as I can still marry my box turtle (don’t worry, she’s female), we could do it tomorrow. I heard that it’s already been tried once or twice before, though.

  • John Pieret

    thebookofdave:

    I heard that it’s already been tried once or twice before, though.

    Pffffttt! That’s only been tried six times! It only gets serious when there have been 50+ attempts, as in repealing Obamacare. That’s when we can really start to say the next time is the charm!!!

  • http://kamakanui.zenfolio.com Kamaka
  • David C Brayton

    I can’t believe the courts in Florida are canceling weddings. I was really looking forward to getting married and paying my property taxes at the same time!!

  • Kimpatsu

    “…but there has been much confusion as to whether that ruling applied outside of the country…”

    I think you mean “county”, Ed.

  • abb3w

    Via Religion Clause, Liberty Counsel still claims victory, touting that “The preliminary injunction now in effect thus does not require the [Washington County] Clerk to issue licenses to other applicants”… yet neglecting to mention that in the very next sentence the judge noting “But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses” … with the emphasizing italics in the original (!).