LGBTQ South Florida

Federal ruling clears way for same-sex marriage in Florida, starting on Tuesday

Attorney Stephen Rosenthal of Podhurst Orseck, SAVE Executive Director Tony Lima and married couple Carlos Andrade and Christian Ulvert on Aug. 21, 2014, at the ACLU of Florida office in Miami.
Attorney Stephen Rosenthal of Podhurst Orseck, SAVE Executive Director Tony Lima and married couple Carlos Andrade and Christian Ulvert on Aug. 21, 2014, at the ACLU of Florida office in Miami. MIAMI HERALD File

On the first day of the New Year, a federal judge issued a landmark ruling that finally cleared the way for same-sex marriage in every county in Florida.

And, significantly, Attorney General Pam Bondi — Florida’s chief legal opponent to gay marriage — said the state would not try to block county clerks from issuing licenses, beginning as early as 12:01 a.m. Tuesday.

Specifically, U.S. District Judge Robert L. Hinkle, clarifying a previous order, ruled that all Florida clerks are bound by the U.S. Constitution not to enforce Florida’s gay marriage ban and that any couple seeking a license should receive one.

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

Howard Simon, executive director of the ACLU of Florida, praised the ruling, saying it made clear the constitution does not tolerate discrimination and that “beginning Tuesday, Jan. 6, all clerks in Florida have an obligation to issue marriage licenses to couples requesting them.”

Simon said Hinkle’s “injunction has statewide impact because he found the law unconstitutional and therefore, as we have been saying, no public official should be acting in accordance with an unconstitutional provision.”

Bondi, in a statement issued Thursday evening, said, “This office has sought to minimize confusion and uncertainty, and we are glad the Court has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed.”

The attorney general did not say whether she planned to drop the state’s appeal of Hinkle’s initial August ruling, which still hasn’t been heard by the 11th Circuit Court of Appeals in Atlanta.

David Weinstein, a former assistant Miami-Dade state attorney and assistant U.S. attorney, now in private practice and not involved in the case, said Bondi was trying to walk a fine line.

“She’s saying look, ‘Judge Hinkle did not tell the clerks that they are required to issue marriage licenses to same-sex couples, however, he told them that they may issue marriage licenses’ and she’s not going to stand in their way of whatever independent decisions they may make,” he said.

But Simon said Bondi’s response continued to muddy the waters after months of legal wrangling, saying her “willful misreading of Hinkle’s order is creating confusion.”

“She is not serving the state of Florida and causing precisely the kind of chaos that this judge has tried to prevent with today’s order,’’ he said. “This is the low point in the performance of an attorney general.”

The American Civil Liberties Union of Florida represents eight same-sex couples legally married elsewhere and LGBT-rights group SAVE in a federal lawsuit seeking to end Florida’s 2008 constitutional ban against same-sex marriage.

On Aug. 21, Hinkle declared Florida’s gay marriage ban unconstitutional, as have circuit judges in Monroe, Miami-Dade, Broward and Palm Beach counties. Bondi filed appeals in the Monroe, Miami-Dade and federal cases and the judges in those cases each stayed their decisions.

Hinkle’s stay in the federal lawsuit expires after Jan. 5. Bondi asked the U.S. 11th Circuit Court of Appeals, then the U.S. Supreme Court for extensions. Both courts said no.

With the deadline approaching, many county clerks said they would not abide by Hinkle’s order, based on advice from top law firm Greenberg Traurig, which represents the Florida clerks association. Greenberg Traurig lawyers in Tallahassee had said clerks who issued licenses to same-sex couples before rulings by the U.S. or Florida supreme courts faced “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000.”

Miami-based Greenberg Traurig reversed its recommendation Thursday after Hinkle’s clarification.

“We are pleased that Judge Hinkle has clarified his original order and the responsibilities of the clerks around the state,” said Hilarie Bass, Greenberg Traurig’s co-president. “The order states that the Constitution requires all clerks to issue marriage licenses to all applicants, regardless of gender.”

In his ruling, Hinkle warned clerks throughout Florida that if they don’t follow his order, they could be sued.

“Judge Hinkle’s order states that any clerk refusing to issue a license could be subject to civil damages and liability for the plaintiffs’ fees and costs,” Bass said. “Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge’s ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.”

Broward County Clerk Howard Forman said his office will meet first thing Friday morning “to implement the order.”

“It was pretty plain,” Forman said about Hinkle’s ruling, adding that the Broward Clerk’s office will announce Friday whether it will open at 12:01 a.m. Tuesday to issue marriage licenses in Fort Lauderdale.

On Dec. 23, Washington County Clerk Lora Bell, the only clerk named in the federal lawsuit, filed a motion with Hinkle to clarify his order.

Hinkle did that Thursday. From his clarification: “History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds.”

Weinstein said Hinkle’s ruling “put the attorney general in checkmate.”

“There is no ‘new’ order for her to appeal,” Weinstein said. “In order for her to take another appeal and try to seek a stay, to prevent enforcement of the injunction, he would have had to issue a new ruling and he didn’t do that. The bottom line is, this opens the door for every clerk in Florida to begin issuing licenses.”

Beginning Tuesday, Florida will become the nation’s 36th state, plus the District of Columbia, where same-sex couples can marry or have their legal marriages recognized. The U.S. government has recognized same-sex marriage since June 26, 2013, when the Supreme Court declared a portion of the federal Defense of Marriage Act unconstitutional, setting off an avalanche of lawsuits throughout the nation.

Miami attorney Richard Milstein, a partner at Akerman and a plaintiff in the federal lawsuit with husband Eric Hankin, said that now “all the people in Florida can get married whether they are heterosexual, gay or lesbian, to the people they love.”

Milstein and Hankin married March 12, 2010, in Iowa.

“Our marriage is going to be recognized along with all other marriages outside the state of Florida, with all the legal rights being granted to us on the state level and on the federal level where they were not granted before, such as Social Security benefits,” Milstein said.

Milstein and Hankin plan to be among perhaps hundreds of married same-sex couples who will renew their vows 6 p.m. Tuesday at Miami Beach Botanical Garden, in a SAVE/ACLU ceremony presided by Miami Beach Mayor Philip Levine.

Nadine Smith, executive director of Equality Florida, a plaintiff in the Miami-Dade case of six same-sex couples suing for marriage licenses, said she is “giddy” by Hinkle’s ruling.

“This is really exciting. It’s a phenomenal way to start the New Year. We believe that Judge Hinkle was clear from the very beginning. Jan. 6 is going to be a statewide day of celebration,” Smith said. “It’s huge. The truth is there’s never been confusion. This was a poorly written [Greenberg Traurig] memo and the judge is gracious enough to save some clerks from themselves.”

Florida marriage primer

Both spouses must apply for a marriage license in person. There is no residency or citizenship requirement. All applicants must show valid identification. Applicants 16-17 years old must show a birth certificate with parent’s name and a parental consent form.

A deputy clerk can perform a marriage ceremony immediately after the license is issued, if the spouses have taken a four-hour premarital course. There is no other waiting period for those who have taken the course. The courses are given in person and online, and can be completed in one day. Search online: ‘Florida premarital course.’

All Florida residents must take the course, or wait three days for a license to become valid. This does not apply to nonresidents. Marriage ceremonies must be performed within 60 days of a license being issued.

License fees: $93.50 or $61 with completion of premarital course. Ceremony: $30.

For details, visit the Miami-Dade County Clerk’s website.

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