Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyDecember 30th, 2014
The fate of same-sex marriage in Florida has been subjected to a bit of a circus. No so much as some states, such as Idaho, Kansas, or Missouri, but still Florida has had its fair share of confusion.
Part of the issue is that there are two courts in which the state’s ban was found, state court and federal court, both ruling on whether the marriage ban violates the US Constitution.
In July, Monroe County Circuit Judge Luis Garcia found that the ban violated the both the Due Process and the Equal Protections provisions of the US Constitution. The state had not put on a particularly stiff defense, merely arguing that the state had the right to set its own laws; Attorney General Pam Bondi did not attend, sending an assistant DA who spoke for about five minutes.
A week later, Miami-Dade Circuit Judge Sarah Zabel found the same thing. Both rulings were appealed to the Florida State Supreme Court.
In August, U.S. District Judge Robert L. Hinkle also found that the state’s ban violated the equal protection and due process provisions of the US Constitution. Attorney General Bondi appealed the ruling to the Eleventh Circuit Court of Appeals.
She then made a request of the state Supreme Court: that it not make a ruling until the Supreme Court of the United State took on one of the many marriage cases before it.
At that time it was a common expectation that SCOTUS would announce in October which case/s it would hear. But to pretty much everyone’s surprise, the court said that it would not be reconsidering any of the pro-gay rulings from the Fourth, Seventh, and Tenth Circuits.
In response Attorney General Bondi asked the Florida State Supreme Court to not continue waiting but instead to decide the issue for the state in due haste. I’m not sure why it was that the Florida Court did not respond (this story is a bit convoluted), but it has not acted.
Which brings us to the federal case, the ruling by Judge Hinkle.
When Hinkle found that the ban violated the US Constitution, he placed a temporary stay on the ruling so that the state could appeal and so that higher courts could put in place a permanent stay, should they wish. That stay expires on January 5th.
Florida requested that the Eleventh Circuit extend the stay until the appeal was heard. It was denied. They requested that SCOTUS extend the stay. It was denied. So on January 6th, same-sex marriages will be allowable in Florida.
The question is, however, to what extent.
The legal counsel for the county clerks association sent a letter telling the clerks that the ruling only applied to the county in which the plaintiffs in that case live. Anti-gay activists demanded that not only was it just one county, but that it was also only just for the one couple.
So the county clerk in Washington County, a small sparsely populated county on the Florida panhandle, asked the judge, “what do I do?”. Judge Hinkle gave the various parties until midnight last night to file their views on the matter.
The judge’s opinion on the scope of his ruling was pretty clear in his order requesting input. He didn’t exactly call the clerk an idiot in so many words, but it was implied.
The counsel for the couples filed a brief yesterday in which they argued that Hinkle’s ruling applied to all the state.
Attorney General Bondi’s brief was a bit more circumspect. Bondi didn’t give an opinion about what the scope of the ruling should be, choosing instead to let the judge do that. She noted that the wording of the original order may not explicitly include all of the state’s county clerks but requested that the judge just tell her what he meant.
This Court is best situated to determine the reach of its own order.
…
If the Court intends the injunction to have effects beyond those that appear on its face, or beyond the interpretation of the Brenner plaintiffs’ counsel, the Court may wish provide appropriate clarification.
In other words, ‘Judge, I don’t think your order says what you want it to say, so please give me some language that tells me what to do’.
I don’t think the judge’s position is going to change. So we should expect ‘clarifying language’ to be released shortly and that same-sex marriages will be legal throughout the state a week from today.
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Hunter
December 31st, 2014
Judge Hinkle’s order seems quite clear:
“4. The defendant Secretary of the Florida Department of Management Services and the defendant Florida Surgeon General must take no steps to enforce or apply these Florida provisions on same-sex marriage: Florida Constitution, Article I, §2; Florida Statutes § 741.212; and
Florida Statutes § 741.04(1). The preliminary injunction set out in this paragraph will take effect upon the posting of security in the amount of $500 for costs and damages sustained by a party found to have been wrongfully enjoined. 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 0therwise.”
The only part of the order that specifies Washington County is section 6, which simply says that the Clerk of Court must issue a marriage license to those plaintiffs.
Note also that this is an order on consolidated cases, involving plaintiffs who live in Miami, Miami Beach, Pensacola, and Palm Beach Gardens, as well as Washington County, which is up in the panhandle.
Something tells me that Judge Hinkle is not thrilled at being asked for “clarification” based on a BS opinion offered by the counsel to the clerks’ association — the state may take no steps to enforce the same-sex marriage bans in the constitution and statutes, so no clerk is in danger of being arrested. To claim that the order applies only to Washington County is ludicrous.
Neil
December 31st, 2014
It really is quite extraordinary that “La la la, not listening, judge say what?” has so far been the Attorney-General’s line on the issue. I guess that line is the political fence she’s sitting on.
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