Federal judge's ruling makes Florida the 36th state where gay marriage is legal

US District Judge Robert Hinkle issued a clarifying order on New Year's Day that all of Florida’s county clerks have a legal duty to issue marriage licenses to same-sex couples seeking to wed. The couples can wed as soon as Tuesday.

Natalie Fertig/The Miami Herald/AP/File
Donna Deptuch, left, attended a rally outside the Miami-Dade Courthouse in Miami in July, with her wife, Susan Wade. LGBT activists stood alongside members of the Christian Coalition outside the courthouse.

On Tuesday, Florida is poised to become the 36th state where same-sex couples can legally marry.

US District Judge Robert Hinkle issued a clarifying order on New Year's Day that all of Florida’s county clerks have a legal duty to issue marriage licenses to same-sex couples seeking to wed. The state attorney general's office had argued on Monday that the judge's preliminary injunction only applied to one same-sex couple seeking to marry in one county.

Judge Hinkle wrote that his original ruling Aug. 21 found that Florida’s ban on gay marriage was unconstitutional. Thus, the US Constitution – not his preliminary injunction – governs the actions of the state’s county clerks. He also warned that if county clerks do not follow his ruling, they could be sued. 

“The result was an explicit ruling that Florida’s same-sex-marriage ban is unconstitutional,” Hinkle wrote. “The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”

The issue remains a divisive one in Florida. Even before Hinkle issued his clarifying order on Thursday, several county clerks had announced that, at least in part to avoid marrying same-sex couples, they would stop performing courthouse wedding ceremonies entirely. The clerks would still need to issue marriage licenses to the couples, or, as Hinkle warned in his ruling, face lawsuits.

“It was decided as a team, as an office, this would be what we do so that there wouldn’t be any discrimination,” Ronnie Fussell, clerk of Duval County, told The Florida Times Union in Jacksonville Wednesday. The paper reported that the clerks of four other Florida counties also announced that their offices would no longer perform courthouse ceremonies. “The easiest way is to not do them at all.”

In his original ruling, Hinkle struck down a 2008 amendment to the state constitution defining marriage as the legal union between one man and one woman. But he issued a temporary stay, which expires Jan. 5, to give the state an opportunity to appeal.

"The defendants did that. They lost," Hinkle wrote in his four-page order. 

Lawyers with the state attorney general’s office argued in a brief filed Monday that the judge’s original ruling only applied to one same-sex couple seeking a marriage license in one county. The state’s lawyers argued that, in his preliminary injunction, Hinkle never issued instructions to all of the state’s 67 court clerks to provide marriage licenses to all same-sex couples seeking to wed.

In his clarifying order Thursday, Hinkle wrote that reasonable people could debate who was covered by that preliminary order. 

“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,” he wrote. “There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.”

Lawyers for the Florida Association of Court Clerks had advised the state’s 67 clerks that they were not bound by Hinkle’s injunction and warned that any clerks not named in the injunction who issued licenses to same-sex couples could face up to a year in prison and a $1,000 fine. On Thursday, the lawyers reversed that advice, saying that the order states that the Constitution requires all clerks to issue marriage licenses to all applicants.

Florida Attorney General Pam Bondi said in a statement Thursday that the state would not block county clerks from issuing licenses to same-sex couples, beginning Jan. 6, and said she was “glad the Court has provided additional guidance. 

“My office will not stand in the way as clerks of court determine how to proceed.”

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