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State Points To Possible Clarification Of Gay-Marriage Ruling

Pam Bondi
State of Florida

In a battle about whether county clerks throughout Florida should start issuing marriage licenses to same-sex couples, Attorney General Pam Bondi's office late Monday tossed the issue back to a federal judge who ruled in August that the state's ban on gay marriage is unconstitutional.

U.S. District Judge Robert Hinkle last week ordered the state to respond to an emergency motion filed by the Washington County clerk of courts, who sought guidance about the scope of the August ruling.

But in a carefully worded, five-page document filed late Monday, state Solicitor General Allen Winsor and Chief Deputy Solicitor General Adam Tanenbaum wrote that Hinkle could resolve the issue with more specific direction.

"This court is best situated to determine the reach of its own order,'' the response said. "If the court intends for (a key part of the August order) to bind a Florida clerk of court (or all Florida clerks of court), additional specificity may be appropriate to place any such clerk on proper notice."

But earlier Monday, plaintiffs' attorneys argued in a court document that clerks throughout the state are bound by Hinkle's ruling on the constitutionality of the same-sex marriage ban and should start issuing marriage licenses to gay couples next week.

Though Hinkle issued his closely watched ruling four months ago, he placed a stay on the decision amid legal appeals. That stay will expire at the end of the day Jan. 5, opening the door for same-sex marriages to start the following day.

Plaintiffs' attorneys focused Monday on part of Hinkle's ruling that said it binds the secretary of the Florida Department of Management Services, state Surgeon General John Armstrong and "their officers, agents, servants, employees, and attorneys --- and others in active concert or participation with any of them."

The plaintiffs argued that county court clerks work in concert with the Department of Health, which is headed by the surgeon general and is in charge of marriage forms and records. As a result, they said Hinkle's ruling should apply to clerks throughout the state.

"Thus, the clerks of court are agents or at least in active concert with defendant Armstrong,'' said the document, filed by Jacksonville attorney William Sheppard, who is helping lead a legal team in the case. "As agents or other persons in active concert with defendant Armstrong, they are bound by … this court's order."

But in the response filed late Monday, attorneys from Bondi's office disputed that argument.

"A clerk is not in privity with the DMS (the Department of Management Services) and Health secretaries, represented by them, or subject to their control,'' the response said. "Instead, a Florida clerk of court is an independent constitutional officer."

The legal wrangling came after attorneys for the Florida Court Clerks & Comptrollers this month issued a memo that said Hinkle's August ruling only applied to the named plaintiffs in the case and not to other same-sex couples in the state. It also warned clerks that they could face prosecution if they issued marriage licenses to gay couples.

"We remain of the opinion that clerks of court who were not parties to the Northern District case (finding the ban unconstitutional) are not bound by Judge Hinkle’s order --- or protected by it,'' said a Dec. 15 legal memo from attorneys for the group. "Clerks are subject to Florida's criminal penalties for the issuance of marriage licenses to same-sex couples."

The Washington County clerk, Lora Bell, has made clear she will comply with Hinkle's ruling and issue a marriage license to Washington County residents Stephen Schlairet and Ozzie Russ, a same-sex couple named as plaintiffs in the lawsuit. But after the Florida Court Clerks & Comptrollers memo, Bell's attorney asked for clarification about whether she would need to issue licenses to other gay couples who might apply.

The clerk's emergency motion added fuel to a debate that already had been building about the memo from the Florida Court Clerks & Comptrollers.

In the document filed Monday, the plaintiffs' attorneys took on the arguments in the memo. As an example, they disputed that clerks could be prosecuted for issuing marriage licenses to same-sex couples.

"Even if the clerks theoretically could be prosecuted … they could assert the unconstitutionality of the ban as a defense,'' the document said. "Moreover, any convictions under this statute would be vacated in light of this court's (Hinkle's) order."