Same-sex marriage will begin Jan. 6 in Florida — the U.S. Supreme Court on Friday evening denied Florida Attorney General Pam Bondi’s request to Justice Clarence Thomas that he extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples.
“The application for stay presented to Justice Thomas and by him referred to the Court is denied,” the Supreme Court announced Friday night, allowing Florida to become the 36th state, plus the District of Columbia, to recognize same-sex marriage.
In a statement Friday night, Bondi conceded: “Tonight, the United States Supreme Court denied the State’s request for a stay in the case before the 11th Circuit Court of Appeals. Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage. Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”
The case, however, isn’t over. Legal arguments haven't been heard before the 11th Circuit, which hasn’t ruled on the merits of the case.
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Also still unresolved: whether clerks in the state’s 67 counties will adhere to the federal court ruling that declared Florida’s gay-marriage ban unconstitutional. The law firm representing the clerks’ association has warned them they could be in violation of Florida law if they issue same-sex marriage licenses before the U.S. Supreme Court settles the issue.
What was clear Friday night is that the Supreme Court refused to extend U.S. District Court Judge Robert L. Hinkle’s stay allowing same-sex marriage to be recognized in Florida on Jan. 6.
“The Supreme Court ruled 7-2 in favor of allowing the injunction to go into effect after Jan. 5,” said attorney Stephen F. Rosenthal of the Miami law firm Podhurst Orseck, who is working with the ACLU of Florida in the case of eight same-sex couples and a Fort Myers widow seeking to have their out-of-state marriages recognized in Florida.
Said Howard Simon, executive director of the ACLU of Florida: “I’m hoping this was Bondi’s last stand. Congratulations to all the people we represented and our great legal team in this historic victory.”
In March, LGBT-rights group SAVE and eight same-sex couples who married elsewhere in the United States sued Florida to recognize their unions: Sloan Grimsley and Joyce Albu of Palm Beach Gardens; Lindsay Myers and Sarah Humlie of Pensacola; Chuck Hunziger and Bob Collier of Broward; Juan Del Hierro and Thomas Gantt Jr. of Miami; Christian Ulvert and Carlos Andrade of Miami; Richard Milstein and Eric Hankin of Miami; Robert Loupo and John Fitzgerald of Miami; and Denise Hueso and Sandra Jean Newson of Miami.
“We’re exhilarated. We’re over the moon. We’re so excited not just for us but for every other couple,” Milstein, a law partner at Akerman in Miami, said Friday night. “We’re beside ourselves. This is so exciting, so great.”
On April 10, the ACLU amended its complaint by adding another plaintiff: Arlene Goldberg of Fort Myers, whose wife, Carol Goldwasser, died March 13. Goldberg and Goldwasser had been partners for 47 years. They moved from the Bronx to Florida in 1989 and married in New York in October 2011. Hinkle ordered Goldwasser’s death certificate to be amended from single woman to married, opening the door for Social Security death benefits.
The ACLU suit eventually was consolidated with a similar federal case involving two couples in North Florida, one already married in Canada and the other wanting to wed.
On Aug. 21, Hinkle of Tallahassee ruled in favor of the couples, throwing out the gay-marriage ban in Florida’s Constitution — approved by 62 percent of voters in 2008 — calling it “an obvious pretext for discrimination.” He stayed his ruling until Jan. 5, giving Bondi time to appeal.
Bondi appealed the case to the 11th Circuit Court of Appeals in Atlanta, which has jurisdiction over Florida, Georgia and Alabama. The appeal hasn’t been heard, but on Dec. 3, three 11th Circuit judges denied Bondi’s request to extend the stay. Bondi this week turned to Thomas, who oversees the 11th Circuit. On Friday night, the high court issued a two-sentence denial of Bondi’s request, noting that justices Thomas and Antonin Scalia would have granted it.
According to the ACLU, once the stay is lifted, Florida must recognize all same-sex marriages performed out of state.
“Every same-sex couple that has been married in another state or another country will have their marriage recognized, and they will qualify for the benefits with marriage: health insurance, pensions, all the practical benefits that come with marriage,” Simon said. “That will happen 12:01 on Jan. 6.”
Also, same-sex couples will now be eligible for Social Security benefits, which are dependent on state laws, Simon said.
“We expect public officials in all of Florida’s 67 counties to understand the significance of this development and look forward to full implementation of Judge Hinkle’s decision across our state,” ACLU of Florida attorney Daniel Tilley said in a statement.
Still not known: Which Florida clerks will issue marriage licenses to gay and lesbian couples.
Top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks, has advised them that only the clerk in Washington County, in rural North Florida — named in Florida’s federal gay-marriage lawsuit — would be bound by Hinkle’s ruling. All other Florida clerks who are not parties in the lawsuit could face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000” if they went ahead and married same-sex couples, according to Greenberg Traurig.
Just before the Supreme Court ruled on the stay Friday night, Greenberg Traurig’s Miami-based co-president, Hilarie Bass, told the Miami Herald that the firm supports same-sex couples’ right to marry but made its recommendation to clerks based on Florida law.
South Florida clerks have been vague as to whether they would issue licenses to same-sex couples beginning Jan. 6.
Monroe County Clerk Amy Heavilin has said she wants to be the first clerk in Florida to marry a gay couple, according to spokesman Ron Saunders.
“I’m sure she’d be open to being a historic clerk,” Saunders said. “Amy Heavilin has personally approved us staying open longer than normal hours, and she will be the one to perform the ceremony.”
Broward Clerk Howard Forman has said his Fort Lauderdale office is ready to go. “There’s a lot of pent-up demand,” he said.
Miami-Dade Clerk Harvey Ruvin says he will issue licenses if directed by the court.
“It is unfortunate that this change is happening in a confusing, inconsistent and somewhat frustrating manner, causing pain and loss of patience for many of our citizens,” Ruvin said in an email Wednesday to Palm Beach Clerk Sharon R. Bock. “In my view, our only option is to remain hopeful that the COURTS will resolve that confusion in a timely manner.”