U.S. Judge Robert L. Hinkle has given Florida officials named in the federal gay marriage case until Monday to respond to a clerk's motion for clarification whether she must marry one same-sex couple or all same-sex couples who come to her office 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 for Washington County Clerk Lora Bell wrote to Hinkle on Tuesday.
When Hinkle declared Florida’s same-sex marriage ban unconstitutional on Aug. 21, he ordered “the defendant Secretary of the Florida Department of Management Services and the defendant Florida Surgeon General must take no steps to enforce or apply” the ban.
Hinkle continued: “The preliminary injunction binds the Secretary, the Surgeon General, and their officers, agents, servants, employees, and attorneys — and others in active concert or participation with any of them — who receive actual notice of this injunction by personal service or otherwise.”
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Wednesday morning, Hinkle ordered the Management Services secretary and the Florida’s surgeon general to respond whether they believe that includes Bell and 66 other county clerks throughout Florida.
In Hinkle’s order on Wednesday, he notes the Florida Attorney General Pam Bondi, once a defendant in the case, is the “attorney of record for the Secretary and Surgeon General in these actions.”
“Clearly, county officials work in concert with state officials. We are not 67 states,” said Howard Simon, executive director of the ACLU of Florida, which sued the state on behalf of LGBT-rights group SAVE and eight same-sex couples legally married elsewhere. “It’s like he’s saying, ‘What part of the word unconstitutional don’t you understand.’”
Simon also stresses that Hinkle’s order does not just pertain to same-sex couples’ right to marry in Florida and whether clerks statewide will issue marriage licenses.
“For everybody legally married elsewhere, their marriages will be recognized in Florida and they become eligible for state benefits for everyone who is legally married at 12:01 on Jan. 6,” Simon said. “We believe marriage becomes legal because unconstitutional is unconstitutional.”
Same-sex marriage is set to begin Jan. 6 in Florida, after the U.S. Supreme Court on Friday evening denied Bondi’s request to Justice Clarence Thomas that he extend a stay issued by Hinkle in the case.
Hinkle 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.”
Bondi hasn’t publicly commented since.
Since the Supreme Court denial of stay, confusion has arisen throughout Florida in the case.
“His order is clear and their obligation to issue marriage licenses is also clear,” said Nadine Smith, executive director of LGBT-rights group Equality Florida, which on Wednesday with National Center for Lesbian Rights sent a memo to clerks outlining why they’re obligated to issue marriage licenses on Jan. 6. “It’s unfortunate that the clerk’s association has allowed a law firm’s poorly written memo to muddy the waters.”
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 a Greenberg Traurig memo to their client, the clerks association.
Later Tuesday, Bell asked Hinkle whether his order pertains only to Schlairet and Russ or to any same-sex couple who wants to get a marriage license.
“The clerks want a statewide order in this case and they’re going to get one,” said David Weinstein, a former assistant Miami-Dade state attorney and assistant U.S. attorney, now in private practice and not involved in this case.
Weinstein believes Hinkle will clarify that Bell must “marry any same-sex couple who comes there and not just the two plaintiff clients.”
Also, he said, Hinkle will clarify that Bondi and state attorneys throughout Florida work “in concert” with the other defendants in the case and that “they’re the people in charge of enforcing those provisions.”
Greenberg Traurig’s Miami-based co-president, Hilarie Bass, said in a statement Wednesday she is happy Hinkle will clarify his order.
“It confirms that he has not yet determined whether his original order applies to other county clerks. Upon issuance of the court's forthcoming order, we will advise our client to act in compliance with the ruling,” Bass said.
Said Simon: “It not the federal judge's job to save us from ourselves. but he’s obviously seeing there is chaos happening.”