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Supreme Court denies stay in Florida gay marriage case; couples could marry after Jan. 5

By Patty Ryan
Attorney General Pam Bondi sought uniformity on the issue.

The U.S. Supreme Court on Friday chose not to meddle in Florida's tug-of-war over marriage equality, declining to delay the Jan. 6 start of same-sex vows.

Attorney General Pam Bondi had asked the court to block gay marriage while Florida fights to protect a 2008 constitutional amendment that allows only heterosexual couples to wed. In a one-paragraph order, the court decided not to step into the Florida case.

Same-sex marriage advocates immediately cheered the court's ruling as a step toward marriage equality.

"We are ecstatic what the Supreme Court has done today," said Daniel Tilley, an attorney for the American Civil Liberties Union of Florida, which filed a federal lawsuit on behalf of same-sex couples and the LGBT-rights group SAVE. "We are so happy for our plaintiffs and all our same-sex couples who can go ahead and get married and have their marriages recognized in their home states."

Reaction was more muted from Bondi, who issued a statement:

"Tonight, the United States Supreme Court denied the state's request for a stay in the case before the 11th Circuit Court of Appeals. Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage. Nonetheless, the Supreme Court has now spoken, and the stay will end on January 5."

In August, U.S. District Judge Robert Hinkle of Tallahassee ruled in favor of nine same-sex couples suing for Florida to recognize their out-of-state marriages and declared the state's gay marriage ban unconstitutional.

Hinkle said in his ruling that years from now the arguments supporting the ban will be viewed as an "obvious pretext for discrimination."

Anticipating that his decision would be appealed, he put a stay on the same-sex vows through Jan. 5.

The state previously asked the 11th U.S. Circuit Court of Appeals to extend the stay, without success.

Most federal judges and appeals courts have ruled against state bans, and gay marriages are occurring in about three dozen states. Like many other judges and appellate courts, Hinkle ruled the state's gay marriage ban violates the U.S. Constitution's guarantee of equal protection.

Bondi sought to keep the stay in place at least until the Supreme Court decided whether take up cases from Ohio's 6th Circuit. The 6th U.S. Circuit Court of Appeals in Cincinnati has upheld the right of four states to decide whether to allow gay marriage.

Friday's decision by the court does not resolve the larger legal battles still brewing over same-sex marriage in Florida.

Tilley said he's anticipating oral arguments early next year before the 11th Circuit on his clients' lawsuit against the state's 2008 constitutional amendment.

Additionally, this week a law firm for the association representing Florida's 67 court clerks issued an advisory opinion that said Hinkle's ruling applies only to Washington County and not to the rest of Florida.

That opinion complicates how clerks are to proceed after Jan. 5 and could set Florida on a path where some clerks ignore Hinkle's ruling, believing it to only apply to Washington County.

Betsy White, one of several civil rights attorneys in Jacksonville representing two of the gay couples named in the federal lawsuit, insisted the clerks' law firm "is dead wrong," and that its opinion essentially encourages 66 separate lawsuits, one for each Florida county not named in the current suit.

If court clerks deviate from Hinkle's ruling, White said her firm is prepared to petition the federal court to force clerks statewide to comply with it. "This is an injunctive case. When injunctions are issued by a federal judge, they carry the weight of the federal law," she said.

Still some clerks say they feel uneasy going forward with the marriage licenses.

Hillsborough County Clerk Pat Frank said she has been told she could be prosecuted for malfeasance or misfeasance in office — a first-degree misdemeanor — if she marries same sex couples.

"I don't mind going to jail, I don't mind paying the thousand dollar fine," she said. "What I do mind is if the governor determines that it's malfeasance in office, he could suspend me, and I'm not about to allow that to happen. We're in the midst of an important transformation and I couldn't do that to my staff."

She also said that marrying couples under such uncertainty would likely complicate their situation.

Frank said she's hopeful that the U.S. Circuit Court of Appeals or the U.S. Supreme Court will take up the issue so clerks can have clear guidance.

"This is the most obvious violation of civil rights," she said. "I can't see how a higher court can't identify this.

"Justice delayed," she said, "is justice denied."

Times staff writer Tony Marrero contributed to this report, which used information from the Associated Press.