State Tosses Gay Marriage Issue Back To Judge

Dec 30, 2014

The legal back-and-forth over gay marriage in Florida  just got murkier.

When Tallahassee-based U.S. District Judge Robert Hinkle issued a decision against Florida’s same sex marriage ban in August, he put a stay on his ruling to allow time for an appeal. The stay expires January 5th after the U.S. Supreme Court refused to intervene. Attorneys for Florida’s Clerks of Court argue that ruling only applies to one couple in one county--Washington County in the panhandle, whose clerk is a defendant in the case.

The Clerks' attorneys argue the only courts that can make Hinkle’s decision apply statewide are the U.S. Supreme Court, the Florida Supreme Court, or a Florida District Court of Appeal, and most of the clerks of court say they won't issue marriage licenses to same-sex couples.

The Washington County Clerk of Court has asked Judge Hinkle to clarify whether she should issue a marriage license to the couple named in the lawsuit, or if she has to issue a license to all same-sex couples who apply. Hinkle requested the state respond, and late Monday, it did.

"This court is best situated to determine the reach of its own order,'' said the five-page response written by Solicitor General Allen Winsor and Chief Deputy Solicitor General Adam Tanenbaum.  "If the court intends for (a key part of the August order) to bind a Florida clerk of court (or all Florida clerks of court), additional specificity may be appropriate to place any such clerk on proper notice."

The issue comes as advocates for same-sex marriage have threatened to sue Clerks of Court who do not grant marriage licenses on or after the 6th. They argue Hinkle's decision should apply statewide. The 11th Circuit of Appeals in Atlanta has not ruled on an appeal of Hinkle's initial decision to strike down the state's constitutional ban on gay marriage, and several other cases against the ban are still pending in state courts.