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.
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.