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Florida: Recognition of same-sex marriages (SSMs)

Part 19:
End of 2014-DEC: Florida submits brief.
Video showing status of SSM in Florida.
District Court clarifies its August ruling.

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This topic is a continuation from the previous essay

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2014-DEC-29: The State of Florida submits a brief arguing that the District Court ruling only applies to the plaintiffs in one county:

Attorney General Pam Bondi submitted a five-page brief to U.S. District Court Judge Robert Hinkle at about 10 PM on 2014-DEC-29, two hours before the deadline specified by the judge. The brief asserts that his court ruling in Brenner v. Scott only applies to the plaintiffs in the case. Further, it only involves one of the 67 court clerks in Florida; that is Lora Bell, the clerk of Washington County where the plaintiff couple resides. She is the only court clerk referred to in the ruling. 8

However, the brief acknowledges that:

"This Court is best situated to determine the reach of its own order."

It contains a citation from a 1980 case that reinforces the importance of a judge's interpretation of their own ruling:

"Great deference is due the interpretation placed on the terms of an injunctive order by the court who issued and must enforce it.

The brief states that a county clerk:

"... is not in  privity with the DMS and Health Secretaries, represented by them, or subject to their control. Instead, a Florida clerk of court is an independent constitutional officer. ... If the Court intends the injunction to have effects beyond those that appear on its face, ... the Court may wish to provide appropriate clarification." 5

Jay Michaelson, writing for The Daily Beast a week later, said that Bondi argued that Judges Hinkle's injunction:

"... only applies to these four plaintiffs—not to anyone else. That’s a novel argument, really—it’s like saying that Brown v. Board of Education only applies to the Brown family. 15

Dwight Brock, the clerk for Collier County commented on the state's brief. He said:

"I have no idea what their objective was. They have made it about as clear as mud. It hasn't given me a lot of clarity. I still don't know what I will do." 6

In contrast, lawyers for the plaintiffs argued in their brief that Judge Hinkle's ruling applies across the entire state and to all qualified same-sex couples who wish to marry. 5 A "qualified couple" is one who meets the minimum age requirement and who are not too closely related as specified by the state.

Meanwhile, the situation became more complex on DEC-30 when a conservative group, Florida Family Action, Inc (FFAI) filed a new lawsuit in a state court: the Circuit Court of the Ninth Judicial Circuit in and for Orange County. It names Osceola County Clerk of Court: Armando Ramirez, Orlando Mayor: Buddy Dyer, and Circuit Judge Robert LeBlanc as defendants. 7

Clerk Ramirez had indicated that he plans to issue marriage licenses to same-sex couples in early January after the stay expires. Both the mayor Dyer and Judge LeBlanc have indicated that they plan to officiate at marriages of same-sex couples on 2015-JAN-06. The FFA seeks to prevent these actions. 6

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2014-DEC-30: A video from the Christian Science Monitor describing the year-end status of SSM in Florida:


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2015-JAN-01: District Court Judge Robert Hinkle issued a clarification:

U.S. District Judge Hinkle issued a four page clarification of the Preliminary Injunction that he issued in August. 10,11 In Pages 2 to 4, he wrote:

"A preliminary injunction is in place and has been for more than four months. It holds unconstitutional the Florida ban on same-sex marriage. ... the Clerk [of Washington County] has filed an emergency motion to clarify the preliminary injunction. She asks whether the injunction requires her to issue marriage licenses to all qualified same-sex applicants or only to the two unmarried plaintiffs.

The result [of the hearings before this court] was an explicit ruling that Florida’s same-sex marriage ban is unconstitutional. ..."

"I stayed the ruling in this case ... long enough to allow the defendants to seek a further stay in the United States Court of Appeals for the Eleventh Circuit and, if unsuccessful there, in the United States Supreme Court. The defendants did that. They lost [in both courts]. The United States Supreme Court allowed the ruling in this case to take effect."

"Reasonable people can debate whether the ruling in this case was correct and who it binds. 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."

"... 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.

The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so.

"... no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. 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 [federal] Constitution requires the Clerk to issue such licenses.

As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction." 10

We interpret this as meaning that:

The District Court's Preliminary Injunction declares that the ban on same-sex marriages found in the Florida Constitution' is unconstitutional. The Injunction requires the clerk of Washington County to issue a marriage license to the unmarried plaintiff couple in the case. Also, according to the Injunction, she and other clerks of Court in Florida are now free to issue marriage licenses to other qualified same-sex couples. Further, the federal Constitution requires clerks to issue such licenses. If a clerk decides to not issue licenses, then same-sex couples seeking licenses can file personal lawsuits against the clerk and claim for legal fees.

The implication is that if such a lawsuit were filed, the clerk would certainly lose the case because her or his refusal to issue a license would violate the federal Constitution.

In short, clerks have the choice of following the U.S. Constitution's 14th Amendment as required by their oath of office, or be sued and perhaps lose their life savings.

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above menu. The hyperlinks are not necessarily still active today.

  1. Adam C. Smith, "The Buzz: 2014's winner and loser in Florida politics," Tampa Bay Times, 2014-DEC-27, at: http://www.tampabay.com/
  2. Emily Simeral, "Pam Bondi Named Tampa Bay Times Loser of The Year," Human Rights Campaign, 2014-DEC-29, at: http://www.hrc.org/
  3. Mike Schneider & Melissa Nelson-Gabriel, "Florida clerks won't give gays marriage licenses," WTSP-TV, 2014-DEC-26, at: http://www.wtsp.com/
  4. "Order Setting Procedures on the Motion to Clarify," Scribd, 2014-DEC-24, at: http://www.scribd.com/
  5. Warren Richey, "Florida argues judge's gay marriage ruling only applies to one couple," Christian Science Monitor, 2014-DEC-30, at: http://www.csmonitor.com/
  6. Mike Schneider, "Florida Group Tries to Stop Gay Marriages," ABC News, 2014-DEC-30, at: http://abcnews.go.com/
  7. "Florida Family Action, Inc, v. Buddy Dyer et al.," Circuit Court of the Ninth Judicial Circuit in and for Orange County, 2014-DEC-30, at: http://flfamily.org/
  8. "Secretary of the Florida Department of Management Services's Response to Clerk's Motion," Scrib, 2014-DEC-28, at: http://www.scribd.com/
  9. "Memorandum to Florida County Court Clerks ..." Scribd, 2014-DEC-23, at: http://www.scribd.com/
  10. District Judge Robert Hinkle, "Brenner v, Scott: Order on the scope of the preliminary injunction," U.S. District Court for the Northern District of Florida, 2015-JAN-01, at: http://tampabay.com/
  11. Martina Stewart, "Federal judge removes another hurdle to same-sex marriage in Florida," Washington Post, 2015-JAN-02, at: http://www.washingtonpost.com/
  12. "Judge: Florida clerks have duty to issue same-sex marriage licenses," CBS News, 2015-JAN-01, at: http://www.cbsnews.com/
  13. John W. Davis, "Judge: Gay marriage ruling applies to all Florida counties," MyNews13, 2015-JAN-01, at: http://www.mynews13.com/
  14. Mark Joseph Stern, "Law Firm Issues Bogus Advice to Clerks About Gay Marriage Licenses, Gets Slapped Down," Slate.com, 2015-JAN-02, at: http://www.slate.com/
  15. Jay Michaelson, "The Back Alley, Low Blow-Ridden Fight to Stop Gay Marriage in Florida Is Finally Over," The Daily Beast, 2015-JAN09\\-05, at: http://www.thedailybeast.com/

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Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Florida > here

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Copyright © 2014 & 2015 by Ontario Consultants on Religious Tolerance
Originally written: 2014-DEC-28
Latest update: 2015-JAN-06
Author: B.A. Robinson

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