Lawyers for Washington County Clerk Lora Bell on Tuesday filed an emergency motion with U.S. District Judge Robert L. Hinkle asking whether she must give a marriage license to just the one same-sex couple named in Florida’s federal gay marriage lawsuit or to all same-sex couples who come to her office on Jan. 6.
“The Clerk requests clarification as to whether the Injunction requires that the Clerk only issue marriage licenses to Stephen Schlairet and Ozzie Russ as specifically set forth in the Injunction, both of whom are parties to this matter, or if the Injunction requires that the Clerk issue marriage licenses to all same-sex couples who apply once the stay expires at the end of the day on January 5, 2015,” lawyers wrote to Hinkle.
Same-sex marriage is set to begin Jan. 6 in Florida, after 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.
On Aug. 21, U.S. District Court Judge Robert L. Hinkle of Tallahassee overturned Florida’s 2008 constitutional gay-marriage ban and stayed his ruling through Jan. 5, to give Bondi time to take the case to the U.S. Circuit Court of Appeals in Atlanta. The appeal still hasn’t been heard by that court, but on Dec. 3 three 11th Circuit judges told Bondi it would not extend Hinkle’s stay.
After the Supreme Court announcement Friday night, Bondi conceded in a statement that “the Supreme Court has now spoken, and the stay will end on Jan. 5.”
Bell’s attorney, Jeff Goodman of Chipley, Florida, said the clerk would issue a marriage license to Schlairet and Russ, but that Bell “anticipates that upon the stay’s expiration she will receive other applications for marriages licenses from same-sex couples.”
Said Howard Simon, executive director of the ACLU of Florida, which represents LGBT-rights group SAVE and eight same-sex couples in the case:
“We’re preparing a response, hoping that this will be the occasion that Judge Hinkle saves the state from chaos and that he will affirm what we have been saying, that no public official should be enforcing an unconstitutional law.”
Other Florida same-sex marriage developments:
▪ As expected, the Florida Court Clerks & Comptrollers association on Tuesday announced its position is unchanged, that Hinkle’s order that Florida’s same-sex marriage ban is unconstitutional is “not binding on any other court.”
The clerks’ opinion is based on advice given to them by top law firm Greenberg Traurig, according to association Executive Director Kenneth A. Kent.
On Monday, LGBT lawyers and activists disagreed with Greenberg Traurig’s recommendation.
“A law firm memo does not override a federal judge’s order and the actions of the 11th Circuit and the U.S. Supreme Court,” said Nadine Smith, executive director of Equality Florida, a major LGBT-rights lobbying group. “They’re actually exaggerating the risk on one hand and ignoring the extraordinary risk clerks will face in lawsuits and damages for violating the constitutional rights of every couple they turn away.”
▪ U.S. Rep. Alan Grayson and Osceola County Commissioner Cheryl Grieb asked Orange-Osceola State Attorney Jeff Ashton to confirm that Orlando-area clerks would not be prosecuted for issuing marriage licenses to same sex couples.
“Opponents of marriage equality are using the threat of criminal prosecution of clerks of court to delay implementation of the judge’s ruling,” reads a jointly signed letter to Ashton. “We call upon you to confirm that unless Judge Hinkle’s ruling is reversed … you will exercise your prosecutorial discretion to eschew any criminal action of any kind against the Clerks of Orange and Osceola Counties for adhering to the Court’s mandate to issue licenses to otherwise qualifying same-sex couples.”
▪ Equality Florida Tuesday launched a campaign, “Call your county clerk today.”
“If you’ve been following our updates you know that County Clerks across Florida are determining whether they will begin issuing marriage licenses on Jan 6th,” writes Smith in an email to supporters. “We believe it is their duty to do so when the stay in the federal case expires and we are working with attorneys to see that clerks who refuse are hit with costly legal challenges.”
“Here’s what you need to do,” Smith writes:
“Contact your Clerk and let her or him know you expect them to uphold their oath to protect the rights of all as guaranteed by the US Constitution and issue a marriage license. Click here for talking points.
“Get Everyone You Know to Contact the Clerk — Everyone you would invite to your wedding. All your friends. Get everyone you know to make sure the Clerks understand that denying marriage is unconstitutional.
“Email us at email@example.com with updates on what you are hearing.”
Complete clerks association statement
Statement on Behalf of the Florida Court Clerks & Comptrollers Executive Director Kenneth A. Kent Regarding Same-Gender Marriage Licenses in Florida
Tallahassee, Fla. – The Florida Court Clerks & Comptrollers today issued the following statement attributed to its Executive Director Kenneth A. Kent regarding the same-gender marriage licenses in light of the recent ruling.
“The Florida Court Clerks & Comptrollers’ opinion regarding the legality of issuing same-gender marriage licenses in the State of Florida, as previously stated by our general counsel, remains unchanged. Numerous cases support the holding that the denial of the state’s motion to stay by the U.S. Supreme Court last Friday was not a decision on the issue of same-gender marriage.
“Our general counsel has advised us that established case law makes it clear that the order of a trial court, including the Federal District Court in this case, is not binding on any other court. Further, it is the understanding of the Florida Court Clerks & Comptrollers that the only courts that can bring judicial clarity to this question through a binding, statewide decision are the U.S. Supreme Court, the Florida Supreme Court or a Florida District Court of Appeals.
“Absent a ruling from one of those three bodies, our opinion, as previously presented by our general counsel, will not change.
“The Clerks of the Court remain committed to their duties as constitutional officers. And, to further gain clarity, our general counsel has recommended that the Washington County Clerk consider filing an emergency motion with the Federal District Court seeking clarification as to who the court’s injunction was intended to apply.”