Citing a potential for “statewide confusion,” Florida Attorney General Pam Bondi on Monday asked U.S. Supreme Court Justice Clarence Thomas to keep in place a stay that would prevent same-sex couples in Florida from marrying on Jan. 6.
“When the United States District Court for the Northern District of Florida ordered the Washington County Clerk of Court to issue a marriage license to a same-sex couple, it temporarily stayed the order. That stay is now set to expire at the end of the day on Jan. 5, 2015,” according to a news release from Bondi’s office. “The recent decision denying a longer stay has created statewide confusion about the effect of the injunction, which is directed to only one of Florida's sixty-seven clerks of court.”
The “statewide confusion” rests with a July 1 memo from top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks.
In the memo to the clerk’s association, Greenberg Traurig advised that only the clerk in Washington County, in rural North Florida — named in Florida’s federal gay-marriage lawsuit — would be bound by a ruling by U.S. District Judge Robert L. Hinkle of Tallahassee. All other Florida clerks who are not parties in the lawsuit, could face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000” if they went ahead and married same-sex couples, according to Greenberg Traurig.
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On Monday, the law firm stood by its original recommendation.
“We realize that it may seem to many that Judge Hinkle’s federal district court ruling that Florida’s same-sex marriage ban is unconstitutional and violates fundamental rights would permit all Florida clerks of court to lawfully issue marriage licenses to same-sex couples,” according to a revised Greenberg Traurig memo released Monday. “However our review of the law indicates that an order and injunction issued at the federal trial level is not binding on any person, including a clerk of court, who is not a named party in the action. Nor does such a ruling bind any other court.”
Greenberg Traurig continues to advise Florida clerks that until the case is settled once and for all, they “remain exposed to Florida’s apparently unique criminalization of the issuance of marriage licenses to same-sex couples.”
Bondi filed her application to Thomas, the justice who presides over the 11th Circuit Court of Appeal in Atlanta.
“The Eleventh Circuit’s recent decision denying a longer stay has created statewide confusion, with news reports now suggesting that the end of the stay will lead to statewide issuance of same-sex marriage licenses, even though only one of Florida’s 67 clerks of court is a party below,” Bondi wrote to the Supreme Court. “Some clerks who are not parties to this litigation have announced that, absent a stay, they will begin issuing licenses on January 6.”
On Dec. 3, a three-judge panel of the 11th Circuit Court denied Bondi’s request to keep in place a stay ordered through Jan. 5 by Hinkle, who in August declared Florida’s 2008 gay-marriage ban unconstitutional.
After Hinkle’s ruling, Bondi immediately appealed to the 11th Circuit Court, which has jurisdiction over Florida, Georgia and Alabama. The attorney general has also appealed similar rulings by circuit court judges in Monroe and Miami-Dade counties.
“It is unsurprising, given how hard [Gov. Rick] Scott, his appointees, and Attorney General Bondi have fought to keep loving and committed couples from getting married and having their marriages recognized in Florida, that they would keep up this dead-end fight. But with just weeks until the ruling is scheduled to go into effect, it is disappointing,” ACLU of Florida attorney Daniel Tilley said Monday in a statement. “Florida families have waited long enough for the end of a ban that a federal court has declared unconstitutional. Since October, the Supreme Court has refused all requests to stay rulings striking down the exclusion of same-sex couples from marriage in other states. We are hopeful they will do the same here so that loving couples and their children can get the protections for which they have waited so long.”
The ACLU, ACLU of Florida and attorney Stephen F. Rosenthal of Podhurst Orseck in Miami represent LGBT-rights group SAVE and eight same-sex couples who are suing Florida to recognize their out-of-state marriages.
James Esseks, director of the LGBT Project for the ACLU in New York and an attorney in the Florida case, said it’s possible Justice Thomas would accept Bondi’s stay request, but more likely that he would refer it to the full court.
Esseks said that since October, when the Supreme Court denied hearing appeals of federal court decisions allowing same-sex marriages in Utah, Oklahoma, Virginia, Wisconsin and Indiana, justices have denied similar state requests for stays four times.
“It denied stays by Idaho, Kansas, Alaska and South Carolina,” Esseks said. “Same-sex couples are marrying in all four of those states.”