The move by Bondi comes after a federal appeals court in Atlanta refused to keep on hold a ruling that declared Florida’s ban on gay marriage unconstitutional. That decision brought same-sex weddings one step closer to reality in the state.
In their court filing, Bondi and her attorneys maintain that if the ban was struck down, some, but not all county clerks in Florida would begin issuing marriage licenses for same-sex couples on Jan. 6. That’s because the underlying lawsuit against Florida’s ban only named one county clerk.
“The public interest is not served by having two sets of marriage laws in Florida or by confusion about the law,” states the filing signed by Solicitor General Allen Winsor. “Moreover, those who did marry based on the preliminary injunction would face uncertainty regarding their marital status.”
Howard Simon, executive director of the American Civil Liberties Union of Florida, called the emergency petition “Bondi’s last stand.” The ACLU has been representing some of the same-sex couples who challenged the ban on gay marriage that was approved by voters in 2008.
“This late effort is her attempt to delay what is inevitable progress in human rights,” Simon said in an email. “What is the point of trying to prevent couples from marrying and prevent couples who have already been married from having their marriages recognized in Florida – which is scheduled to begin on January 6th?”
U.S. District Judge Robert Hinkle in August declared the state’s ban unconstitutional, but he put his ruling on hold pending appeals that were further along in other federal courts.
Like many other judges, Hinkle ruled that the state’s gay-marriage ban violates the U.S. Constitution’s guarantee of equal protection. Most federal appeals courts have adopted a similar view, except for the 6th U.S. Circuit Court of Appeals in Cincinnati, which upheld the right of four states to decide whether to allow gay marriage. More than half the states allow gay marriage.
After the U.S. Supreme Court in October turned away appeals from five states seeking to prohibit gay and lesbian unions Hinkle was asked to lift the stay on his ruling. Hinkle in November refused and instead said his stay would remain in place until Jan. 5.
Bondi’s office asked the Atlanta-based 11th Circuit Court of Appeals to keep the state’s ban in place while it pursued an appeal of Hinkle’s initial ruling. But the appeals court refused although it said it would consider the substance of the state’s appeal on an expedited basis.
It’s unclear when the 11th Circuit will rule on the substance of the state’s appeal.
Ultimately it will likely take the U.S. Supreme Court to decide the issue nationally, particularly since there is now a split among the circuit courts.
Judges in four Florida counties have also declared the same-sex marriage ban unconstitutional, but those decisions are also being appealed by Bondi and no marriage licenses have been issued.
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