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Judge Issues Order Clarifying Gay Marriage Ruling

gay marriage protest sign
Sushiesque via Flickr

Tallahassee-based U.S. District Judge Robert Hinkle says his order on gay marriage applies statewide in Florida.

The ruling, released Thursday afternoon, says while Florida Clerk of Courts are not obligated to issue marriage licenses to same-sex couples, they could be sued if they don't. The order comes after the Washington County Clerk of Court asked Hinkle to clarify whether his ruling applies to the one couple named in the original lawsuit against the Washington clerk, or, if it mandates that she grant marriage licenses to all gay couples who apply. In the order, Hinkle writes:

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 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.

Florida Attorney General Pam Bondi's office says the court has specified the injunction doesn't require clerks to issue marriage licenses to same-sex couples other than the plaintiffs in the case, but that the court says a clerk can grant licenses to gay and lesbian couples who were not part of the lawsuit. In a statement, Attorney General Pam Bondi says, "my office will not stand in the way as clerks of court determine how to proceed."

Hinkle's newly clarified order now leaves the decision on whether to grant marriage licenses to gay couples in the hands of the individual clerk of courts.

"Today’s ruling confirms that all Florida officials, including county clerks, must comply with the federal Constitution and must therefore treat same-sex couples equally under the law by issuing marriage licenses to qualified same-sex couples and by treating their marriages equally in all respects," said Shannon Minter, legal director for the National Center for Lesbian Rights.

“We believe Judge Hinkle's order was clear from the beginning," said Nadine Smith, CEO of Equality Florida. “We are pleased that he has put an end to the unnecessary confusion caused by a misguided legal memo by a private law firm. We look forward to January 6th when couples who have waited for this day can finally be married, and those of us married elsewhere are finally able to fully protect our families.”

Advisors to the state's court clerks' association had told the officials the ruling applied to only one couple in one county--Washington County--and, that they could face criminal charges if they granted marriage licenses to other same-sex couples. Gay rights activists, including Equality Florida,  say they'll  sue clerks who do not comply with the ruling. But the clerks could be in a Catch-22.

The group that backed the 2008 petition drive for the state's constitutional gay marriage ban, says Hinkle's ruling is being, "widely misinterpreted."

In a statement, Florida Family Policy Council President John Stemberger argues Hinkle's ruling only affects Washington County, and that its clerk, "is required to issue a marriage license and only to the two persons in that case. Judge Hinkle has no jurisdiction outside of the Northern District of Florida to bind any clerk outside of North Florida. Clerk's outside of North Florida are required to obey the current law and are still subject to all the penalties of a first-degree misdemeanor for violating it."

The Florida Family Policy Council has already brought lawsuits against officials in Orange and Osceola counties who have said they'll go ahead with same-sex marriages once the stay expires at midnight on January 5th.


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Lynn Hatter is a Florida A&M University graduate with a bachelor’s degree in journalism. Lynn has served as reporter/producer for WFSU since 2007 with education and health care issues as her key coverage areas.  She is an award-winning member of the Capital Press Corps and has participated in the NPR Kaiser Health News Reporting Partnership and NPR Education Initiative. 

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