Florida asks judge to decide who can issue marriage licenses to same-sex couples


TALLAHASSEE, Fla. — Just days before Florida‘s ban on gay marriage is scheduled to be lifted, the state’s top legal officer wants a federal judge to clarify whether clerks in all counties can issue marriage licenses to gay couples.

Attorney General Pam Bondi (R-Fla.)AP

Attorney General Pam Bondi (R-Fla.)

Attorney General Pam Bondi filed a legal response to U.S. District Judge Robert Hinkle late Monday. Hinkle previously ruled that Florida’s same-sex marriage ban is unconstitutional. He stayed his ruling, but the stay is scheduled to expire Jan. 5.

The association that represents county clerks said the ruling only applies in Washington County, the Panhandle county where the legal challenge originated. Most county clerks around the state say they do not plan to begin issuing licenses on Jan. 6.

Gay-rights groups dispute that interpretation and say the ruling applies to all 67 clerks.

Hinkle last week ordered the state to “explicitly” state whether the proposed injunction applies to all the clerks.

But Bondi’s filing doesn’t offer a clear opinion on who is right. Instead, it says if Hinkle intends for the ruling to apply more widely, he should “provide appropriate clarification.”

“This court is best situated to determine the reach of its own order,” states the filing made by Allen Winsor, the state’s solicitor general, on behalf of Bondi.

The legal filing does argue that clerks are “independent” officials under Florida’s constitution and that Hinkle’s initial ruling took aim at other statewide officials under Gov. Rick Scott who are not connected to clerks.

Voters in 2008 approved Florida’s ban on same-sex marriages. But like many other judges and appellate courts, Hinkle ruled the ban violates the U.S. Constitution’s guarantee of equal protection. The state has appealed that ruling.

But while the appeal is underway, Bondi tried to persuade a federal appeals court in Atlanta to keep Hinkle’s ruling on hold and keep the ban in place. Bondi’s office argued at the time that there was “widespread confusion” on how to carry out Hinkle’s order.

The appeals court rejected the request, so Bondi went to U.S. Supreme Court Justice Clarence Thomas, who oversees emergency appeals from Florida, Alabama and Georgia.

The entire U.S. Supreme Court wound up considering the petition but in a one-paragraph order issued earlier this month the court stated that only Thomas and Justice Antonin Scalia would have kept the stay in place.

Howard Simon, executive director of the American Civil Liberties Union in Florida, said in an email that the “confusion” created over Hinkle’s ruling was because the way Bondi and others interpreted it.

“No public official should then be enforcing an unconstitutional law,” Simon said.

A copy of Bondi’s filing is here

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