A federal judge Wednesday ordered the state to respond by Monday in an increasingly heated legal debate about whether county clerks should begin issuing marriage licenses to same-sex couples on Jan. 6.
U.S. District Judge Robert Hinkle, who in August ruled that the state's ban on same-sex marriages was unconstitutional, issued a four-page order requiring legal filings from the secretary of the Florida Department of Management Services, a defendant in the case. A stay on Hinkle's August ruling will expire at the end of the day Jan. 5 --- prompting gay-marriage supporters to argue that same-sex couples should be able to start receiving marriage licenses throughout Florida the following day.
Hinkle's order was prompted by an emergency motion filed Tuesday by an attorney for Washington County clerk of court Lora Bell. Washington County, which is north of Panama City in the Panhandle, is home to Stephen Schlairet and Ozzie Russ, a same-sex couple named as plaintiffs in the challenge to the gay-marriage ban.
The clerk's emergency motion said she would comply with Hinkle's August ruling and issue a marriage license to Schlairet and Russ on Jan. 6. But it sought clarification about whether she also would be required to issue licenses to other gay couples who might apply.
That question, at least in part, stemmed from a legal memo issued last week by the Florida Court Clerks & Comptrollers that said Hinkle's August ruling only applied to the named plaintiffs in the case and not to other same-sex couples in the state.
Hinkle on Wednesday ordered the state to respond to the Washington County clerk's motion for clarification. He also required that the response "explicitly set out the secretary's position" on whether part of his August ruling "binds a Florida clerk of court."
That part of the ruling, which was an injunction against the same-sex marriage ban, includes a section that says it "binds the secretary (of the Department of Management Services), the (state) surgeon general and their officers, agents, servants, employees, and attorneys --- and others in active concert or participation with any of them."
Two gay-rights groups sent a legal memo Wednesday to court clerks focusing heavily on that same part of Hinkle's August ruling. The memo contends that court clerks work in concert with the Department of Health, which is headed by the surgeon general and is in charge of marriage forms and records.
As a result, the memo contends that Hinkle's ruling should apply to clerks throughout the state and should not be limited to the named plaintiffs Schlairet and Russ.
"In sum … all Florida county clerks are required to cease enforcing Florida's unconstitutional laws excluding same-sex couples from marriage,'' said the memo from the group Equality Florida and the National Center for Lesbian Rights. "Indeed, county clerks and their employees could be subject to personal liability for damages if they continue to enforce Florida's unconstitutional marriage laws."
Hinkle also ordered the state to submit by Monday a "copy of each paper" it filed in the 11th U.S. Circuit Court of Appeals and the U.S. Supreme Court as it sought unsuccessfully to extend the stay beyond Jan. 5. The Supreme Court rejected an extension last week.
Attorneys for gay-rights groups and the Florida Court Clerks & Comptrollers have battled back and forth about how broadly Hinkle's ruling should be applied. In the middle are county clerks, who have been warned by attorneys for the Florida Court Clerks & Comptrollers that they could face prosecution if they issue marriage licenses to same-sex couples other than the plaintiffs in the case.
"We remain of the opinion that clerks of court who were not parties to the Northern District case (finding the ban unconstitutional) are not bound by Judge Hinkle’s order --- or protected by it,'' said a Dec. 15 legal memo from attorneys for the Florida Court Clerks & Comptrollers. "Clerks are subject to Florida's criminal penalties for the issuance of marriage licenses to same-sex couples."
But in their memo Wednesday, the gay-rights groups disputed the possibility that clerks would be prosecuted if they issued marriage licenses to same-sex couples.
"Clerks who have good-faith belief that they are bound by or may follow Judge Hinkle's ruling do not face a realistic possibility of criminal liability for following that ruling,'' the memo said.