The Tampa Bay Times has penned an editorial about the
recent controversy/confusion about marriage equality in Florida and the scope of Judge Hinkle's order/ruling.
From The Tampa Bay Times:
In an ideal world, when a federal judge declares that a state measure violates the U.S. Constitution, Florida officials wouldn't need a road map to do the right thing. But four months after a federal judge struck down Florida's ban on same-sex marriages, apparently more guidance is needed. The cleanest solution is likely for U.S. District Judge Robert Hinkle to confirm what he probably feels he already said in the eloquent 33-page ruling he penned in August: Florida's limit on whom someone can marry is unconstitutional and any same-sex couple seeking to exercise the right to marry should not be denied — no matter which Florida county they reside in.
The irony, of course, is that the Washington County clerk wasn't the only defendant in the case; so was the state of Florida. And in declaring the 2008 state constitutional amendment banning gay marriages unconstitutional under the U.S. Constitution, Hinkle never even appeared to entertain the idea his ruling would be interpreted with such a pinched view. Ideally, more state attorneys would follow the lead of Palm Beach State Attorney Dave Aronberg, a former state senator, who has announced he won't prosecute any clerk who issues a marriage license to a same-sex couple. This has never been a question of whether court clerks are performing their ministerial duties properly, but whether the state's limits on those duties violate fundamental rights. Hinkle was clear that they do.
Florida's elected officials should be more interested in upholding Floridians' constitutional rights than complying with a state law rooted in bigotry.
According to
LGBTQ Nation, twelve county clerks have announced publically that they will not be issuing marriage licenses to same-sex couples on January 6.
As of Monday, clerks in at least 12 counties — Brevard, Lee, Duvall, Manatee, Indian River, St. Lucie, Martin, Pinellas, Hillsborough, Pasco, Hernando and Nassau counties — have said publicly they will follow guidance in the Greenberg Traurig memo and not issue marriage licenses to same-sex couples on January 6.
You can add the Orange County Clerk to the list per the
Orlando Sentinel.
In a move that could clear the way for same-sex couples to get married in Orange and Osceola counties in two weeks, State Attorney Jeff Ashton on Tuesday announced that he will not prosecute court clerks if they issue marriage licenses to gay and lesbian couples on Jan. 6 or after.
The threat of prosecution had appeared to be the last major obstacle to same-sex couples getting married here.
But a spokesman for Orange County Clerk Tiffany Moore Russell said that Ashton's decision has not changed her position. She still has no plans to issue marriage licenses to same-sex couples.
Over the past two weeks, Osceola County Clerk Armando Ramirez has equivocated, at times saying that, yes, he would issue marriage licenses to same-sex couples on Jan. 6 and at others that he would not.
On Tuesday afternoon he said Ashton's decision took the pressure off him.
"Then I think because of that, there is no reason not to proceed issuing marriage licenses one minute after midnight Jan. 6," Ramirez said.
From
JMG:
Florida has 20 judicial circuit districts and Ashton in the prosecutor for the Ninth Circuit.
Yesterday Miami-Dade County Clerk Harvey Rubin, the losing defendant in Equality Florida's case, asked the Eleventh Circuit Court to clarify the details of the stay's expiration.
In addition, the Washington County Clerk has requested clarification from Judge Hinkle regarding his ruling/order.
Leon County Clerk can also be added to the list. Tallahassee is located in Leon County.
Smith, of Equality Florida, and others said it was preposterous to think clerks would be jailed for issuing marriage licenses to gay couples, pointing out that prosecutors including State Attorney David Aronberg for the 15th Judicial Circuit have already said they will not do so.
UPDATE 1:
From LGBTQ Nation:
As of Wednesday, of the 53 clerks who responded to the AP iquiry, 46 said they wouldn’t grant marriage licenses to same-sex couples because they lack legal authority. Six clerks said they hadn’t made up their minds, and 14 clerks did not respond.
Only one clerk outside Washington County, Osceola County’s Armando Ramirez, said he would issue the licenses.
From
miaminewtimes.com:
According to Hinkle's ruling, the order is binding to all agents of the Florida Surgeon General:
"[Paragraph 4:] The defendant Secretary of the Florida Department of Management Services and the defendant Florida Surgeon General must take no steps to enforce or apply these Florida provisions on same-sex marriage: Florida Constitution, Article I, § 27; Florida Statutes § 741.212; and Florida Statutes § 741.04(1).
... 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."
In other words, Brenner's camp contends, any county clerk who receives notice of Hinkle's injunction are legally bound to recognize same-sex couples much like Surgeon General Armstrong already did with Goldberg.
"Here is something no one knows," said Brenner. "Yesterday [my attorney] Bill Sheppard sent 67 letters to all of the county clerks fulfilling the last sentence in paragraph 4 and putting them all on notice that they are agents of the Department of Health and must do their job."
Currently the letters are being sent to every clerk in Florida and expected to be opened after Christmas break.
If according to Florida law, the county clerks are agents of the Dept. of Health, I don't see how they could legally refuse to issue marriage licenses to same-sex couples.
Judge Hinkle has requested responses from the parties to the lawsuit to Washington County Clerk's motion for clarification by December 29.
From the Miami Herald:
In Hinkle’s order on Wednesday, he notes the Florida Attorney General Pam Bondi, once a defendent in the case, is the “attorney of record for the Secretary and Surgeon General in these actions.”