2014-DEC-23: The National Center for Lesbian Rights and Equality Florida send a memorandum to all 67 county clerks in Florida:
Their memo systematically dismantled the advice previously given by the private law firm Greenberg Traurig, to the Florida Court Clerks & Comptrollers Association. The memo contained a number of points:
Florida County clerks are compelled by District Court Hinkle's ruling to issue marriage licenses to same-sex couples beginning 2015-JAN-06.
"Notably, in other states in which federal district courts have struck down state laws excluding same- sex couples from marriage, county officials throughout the state have relied on district court rulings to issue marriage licenses throughout the state."
"County clerks and their employees could be subject to personal liability for damages if they continue to enforce Florida’s unconstitutional marriage laws" [after 2015-JAN-05].
Even if the county clerks were not required to issue marriage licenses to qualified same-sex couples, they could legally choose to do so.
"Both the Supreme Court and the Eleventh Circuit repeatedly have stated that government officials may abide by a federal district court’s ruling that a law is invalid even if those officials are not parties in the case."
"... reasoned analysis of the relevant law compels the conclusion that any attempted criminal prosecution of a clerk who relied in good faith on Judge Hinkle's order would fail."
"... even if a state attorney wished to bring criminal charges against a county clerk for following Judge Hinkle’s ruling, one of the essential, prima facie elements of the underlying criminal offense -- the required criminal intent -- would not exist so long as the clerk had a reasonable, good-faith belief either that he or she was bound by Judge Hinkle’s ruling or, alternatively, that he or she could properly follow the ruling even if not technically bound."
2014-DEC-27: Further remarks and developments:
The Tampa Bay Times issued their list of winners and losers for 2014 in Florida politics. They chose Attorney General Pam Bondi (R) as the loser for 2014. The Times political editor, Adam C. Smith, wrote:
"It's hard to imagine how someone who won re-election so handily (rival George Sheldon could not afford a single TV ad) could emerge from 2014 more wounded and diminished as our Republican attorney general. Put aside the unseemly junkets funded by groups seeking to influence her. Bondi's clumsy communication skills and relentless defense of Florida's gay marriage ban have made her a modern-day Anita Bryant. Antagonizing Florida's gay voters over same-sex marriage and Hispanic voters over immigration reform ensures Bondi has a bright political future ahead of her — if she moves to Mississippi." 1
Emily Simeral of the Human Rights Campaign (HRC) -- one of the leading groups promoting equality for the LGBT community -- wrote:
"Earlier this month, HRC brought to light Bondi’s hypocrisy as she vigorously fought attempts to overturn Florida’s constitutional ban on marriage equality. The twice-divorced Republican Attorney General wrote in a brief she filed with the U.S. Court of Appeals for the Eleventh Circuit that,
'... the promotion of family continuity and stability is a legitimate state interest. Florida’s marriage laws, then, have a close, direct, and rational relationship to society’s legitimate interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who produced them in stable and enduring family units.'
Congrats to Pam Bondi on the prestigious honor."2
"Sparky," a reader of the HRC blog posed a comment asking why:
"... isn't this twice married and now cohabitating woman not defending the following Florida law? Maybe someone should ask her at a public news conference.
According to Florida law, as stated in Chapter 798 of the Florida Statutes:
'798.02: Lewd and lascivious behavior: If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together ,,, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.'
Second-degree misdemeanors in Florida are punished by fines of $500 or up to 60 days in jail.2
2014-DEC-28 to 30: Potential resolutions to the chaotic situation:
State Attorney Jeff Ashton in Orlando announced that he won't prosecute county clerks if they issue marriage licenses and it later turns out that this action was improper. His area of jurisdiction extends only to Orange and Osceola counties.
Some clerks may decide to refer same-sex couples to county judges who are also able to issue marriage licenses in Florida. 3
As noted in the previous essay Lora Bell, the Clerk of Court for Washington County, asked her lawyers to file an emergency request for clarification with District Court Judge Robert Hinkle. He ordered the plaintiffs in the case, James Brenner et al. and defendants Rick Scott -- the secretary of the Florida Department of Management Services -- et al. to file their briefs outlining their responses by Monday, DEC-29.
In his order, he repeated a passage from his original ruling. This gave a strong indication of what his eventual response would be. He wrote:
"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 otherwise." [Emphasis added by Judge Hinkle.] 4
Whether the phrase in italics included county clerks later became a topic for debate.
Judge Hinkle was expected to issue his ruling later in the week of DEC-28, in time to remove any ambiguity in the ruling before his stay automatically expires at the end of the day on JAN-05.
Rev. Jim Meriitt is the senior pastor the at Holy Cross Metropolitan Community Church in Pensacola, FL, a pro-equality faith group. He referred to the letter from Greenberg Traurig to Florida court clerks & comptrollers that suggested that they withhold marriage licenses from same-sex couples. He said:
"The Supreme Court is clear, and it’s time to move forward. The most confusing situation I can imagine would be issuing a marriage license to only one couple. ... That certainly was not the intent (of the ruling). ... We don’t believe clerks of the court can legally refuse to issue marriage licenses after Jan. 5. Many are hiding behind this letter to avoid doing the inevitable. We believe it’s going to be a very costly move on their part because groups all over the nation are going to take legal action. We’ve waited long enough." 5