Equality Florida and the National Center for Lesbian Rights (NCLR) issued a joint memo to Florida county court clerks Wednesday, advising them of their legal obligation under a federal ruling that struck down the state’s ban on same-sex marriage.
Most of Florida’s 67 clerks of court have said they won’t issue marriage licenses to same-sex couples on Jan. 6, the date a judge’s stay expires in his August ruling that declared the ban unconstitutional.
The majority of clerks who responded to an Associated Press inquiry this week said they wouldn’t offer marriage licenses to same-sex couples without further clarification from the judge on whether his ruling applies beyond Washington County.
A lawsuit filed in the remote Panhandle county by two men seeking to be married became a key basis for U.S. District Judge Robert Hinkle’s August 21 decision. Hinkle put his ruling on hold until end-of-day January 5 to allow the state time to appeal.
Although the U.S. Court of Appeals for the 11th Circuit said it would hear the state’s appeal on an expedited schedule, it refused to extend the stay past Jan. 5. Last week, the U.S. Supreme Court also declined to block same-sex marriages in Florida from moving forward, a rare move considering the appeals court had not yet ruled on the challenge.
On Tuesday, Washington County asked Hinkle to clarify his order and scope of the ruling. On Wednesday, Hinkle issued the following clarification and asked two state agencies to offer their positions by next Monday so that the ruling can be “properly resolved:”
By its terms, paragraph 4 [of the preliminary injunction] binds two Florida officials with statewide jurisdiction — the Secretary of the Department of Management Services and 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 [the] injunction by personal service or otherwise.” The Attorney General of Florida is an attorney of record for the Secretary and Surgeon General in these actions.
The injunction Hinkle refers to states:
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.
Emphasis added by Hinkle.
Previously, attorneys for the association representing Florida’s clerks issued an opinion that the ruling doesn’t apply to other counties, and said clerks can be prosecuted for violating the law if they issue same-sex marriage licenses. Most Florida’s clerks are following that advice.
Earlier this week, Equality Florida warned that “clerks who fail to heed the federal court ruling declaring the ban unconstitutional will end up in a costly legal battle.”
On Wednesday, the NCLR — a legal advocacy group that has successfully represented same-sex couples in marriage challenges across the country, including a separate Florida case — joined Equality Florida in a letter to the clerks advising them they are required to stop enforcing Florida’s on Jan. 6.
Florida county court clerks should follow Judge Hinkle’s ruling and issue marriage licenses to same-sex couples beginning January 6, 2015. The advice provided to the Clerks Association in legal memoranda from a private law firm is incorrect in key respects, including in failing to acknowledge that:
(1) a federal court order is binding not only on the parties to the case, but also on all “persons who are in active concert or participation with” any of the parties; (2) non-party government officials may choose to comply with a federal district court ruling that a law is unconstitutional, even when they are not technically bound by the ruling; (3) an unconstitutional law is void and unenforceable; and (4) county clerks who follow Judge Hinkle’s ruling could not be held criminally liable for doing so because they would not have the required specific criminal intent.
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.