Florida officials are embracing a sharply limited view of a federal judge’s ruling that struck down the state’s ban on same-sex marriages.
A temporary stay of that ruling is set to expire on Monday, potentially authorizing same-sex couples across the state to obtain marriage licenses. Such a move would set the stage for Florida to become the 36th state to recognize such marriages.
But lawyers with the state attorney general’s office are arguing that the judge’s ruling only applies to one same-sex couple seeking a marriage license in Washington County.
They say US District Judge Robert Hinkle’s decision applies to the statewide actions of two Florida officials – the Secretary of Health and the Secretary of Management Services – but to only one court clerk who was instructed by Judge Hinkle to issue a marriage license to one same-sex couple.
The key point, according to lawyers for the state, is that the judge never issued instructions to all 67 court clerks across Florida to provide marriage licenses to all same-sex couples in the state that request them.
“A Florida clerk of court is an independent constitutional officer,” Florida Solicitor General Allen Winsor wrote in a three-page brief filed late Monday.
The state’s position was expressed in a legal brief requested by Hinkle last week. He has been asked to clarify the terms of his decision in August invalidating Florida’s ban on same-sex marriage.
Lawyers for the same-sex couples who sued to overturn the Florida ban argued in their own brief that the judge’s ruling requires all Florida officials to fully comply with the decision, including all 67 court clerks.
Florida is not arguing that Hinkle lacks the power to require court clerks statewide to issue marriage licenses to gay men and lesbians. Instead, Mr. Winsor is arguing that the judge’s injunction – as currently written – does not accomplish that goal.
“If the Court intends the injunction to have effects beyond those that appear on its face… the Court may wish to provide appropriate clarification,” Winsor wrote.
In August, Judge Hinkle struck down Florida’s ban on same-sex marriages, ruling that state statutes and a state constitutional amendment violate a fundamental right under the US Constitution to marry without regard to sexual orientation. The Florida provisions limited marriage to a union between one man and one woman.
In striking down the state provisions, the judge issued an injunction ordering certain state officials to stop enforcing the ban. The judge then stayed his injunction long enough to allow a federal appeals court and the US Supreme Court time to decide whether to issue their own stay.
Earlier this month, both the Atlanta-based Eleventh US Circuit Court of Appeals and the US Supreme Court declined to extend the stay. That meant that the judge’s ruling and his injunction would take full effect beginning Jan. 6.
The question now is: What precisely does the injunction require? Does it mandate statewide recognition of same-sex marriages, or something significantly less?
Part of the confusion stems from the fact that Hinkle’s decision doesn’t apply solely to the issuance of marriage licenses. Plaintiffs in the case also were seeking the ability to gain marital access to their spouse’s employment benefits and to have a same-sex spouse listed as the spouse on a Florida-issued death certificate. Those features of the decision are beyond dispute and will take statewide effect when the stay is lifted.
What remains in dispute is whether Hinkle’s injunction requires all Florida clerks of court to issue marriage licenses to same-sex couples.
Lawyers for the plaintiffs in the case disagree with the state’s narrow interpretation of the scope of the injunction.
They argue in a 13-page brief that all 67 court clerks across Florida are bound by the judge’s decision.
The injunction requires the full compliance of the Florida Secretary of Health and the Secretary of Management Services. It also requires the full compliance of “their officers, agents, servants, employees, and attorneys – and others in active concert or participation with any of them.”
The state’s 67 court clerks – who actually issue marriage licenses – are among those “others in active concert or participation with” the Florida secretaries and are thus also bound by the injunction, the plaintiffs' lawyers say.
Last week, a lawyer representing the court clerk in Washington County asked Hinkle for clarification of whether his order required the clerk to issue one marriage license to plaintiffs Stephen Schlairet and Ozzie Russ, or whether it required the clerk to issue marriage licenses to any same-sex couples who ask for a license.
The question arose after lawyers for the Florida Association of Court Clerks advised the state’s 67 clerks that they were not bound by Hinkle’s injunction. The legal advice included a warning that any clerks not named in the injunction, who nonetheless violate the terms of the state’s ban on same-sex marriages, may be subject to punishment under a Florida law that requires enforcement of the ban.
The law makes it a crime for any clerk to issue a marriage license to a same-sex couple. Those who do so may face up to a year in prison and a $1,000 fine.
The only court clerk who is not subject to enforcement of this criminal sanction, according to the association’s lawyers, is the Washington County clerk who is specifically named in the injunction.
After receiving the legal advice, most court clerks in Florida have said they will decline to issue marriage licenses to same-sex couples until the matter is clarified. Several others say they will begin providing licenses to all couples seeking to marry regardless of sexual orientation, once the stay is lifted.
Hinkle is expected to issue a clarifying order soon.
The case is Brenner v. Scott (14cv107) and Grimsley v. Scott (14cv138).