All clerks bound by U.S. Constitution to marry same-sex couples on Tuesday
By Steve Rothaus. MiamiHerald
U.S. District Judge Robert L. Hinkle ruled New Years Day 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 on Tuesday 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.”
“We are thankful that Judge Hinkle agreed with us that 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,” said Howard Simon, executive director of the ACLU of Florida.
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.”
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.
The ACLU 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 appealed to both the U.S. 11th Circuit Court of Appeals and 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 have said clerks who issue licenses to same-sex couples before rulings by the U.S. or Florida supreme courts 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.”
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: “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.”
The judge also warned clerks throughout Florida that if they don’t follow his order, they could be sued.
“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. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.”
David Weinstein, a former assistant Miami-Dade state attorney and assistant U.S. attorney, now in private practice and not involved in the case, says Hinkle’s latest 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 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.”