Judge Hinkle says all 67 counties may issue marriage licenses to gay couples

Kimmy Denny and her partner Barb Lawrence of Palm Harbor wait outside a court hearing on gay marriage in Miami on July 2. On Thursday, clerks of court across Florida got the word that they may issue marriage licenses to same-sex couples starting next week.
Kimmy Denny and her partner Barb Lawrence of Palm Harbor wait outside a court hearing on gay marriage in Miami on July 2. On Thursday, clerks of court across Florida got the word that they may issue marriage licenses to same-sex couples starting next week.
Published Jan. 2, 2015

Clerks of court across Florida should issue marriage licenses to same-sex couples next week, a federal judge ordered on New Year's Day, warning recalcitrant officials they could face legal consequences if they refuse.

The decision, by U.S. District Judge Robert Hinkle of Tallahassee, ends weeks of speculation and legal maneuvering as clerks throughout the state waited to hear whether gay marriage would become legal statewide, or restricted to Washington County in the Panhandle.

Florida Attorney General Pam Bondi issued a written statement Thursday afternoon saying that her office, which has defended the state's same-sex marriage ban, would not "stand in the way as clerks of court determine how to proceed."

"I am ecstatic," said Pat Frank, Hillsborough County's clerk of court, who plans to extend office hours on Tuesday, the day Hinkle's ruling takes effect. "I was really waiting for this to happen and hoping it would happen."

Anticipating a rush of couples eager to exchange vows, Frank quietly applied several days ago for a permit allowing her to perform wedding ceremonies in Joe Chillura Courthouse Square Park in downtown Tampa. If the little chapel inside Frank's office proves too small, she'll "walk across the street" to the park, she said.

"We're ready," said Pinellas County Clerk of Court Ken Burke. "(Tuesday), we'll start issuing marriage licenses and performing wedding ceremonies."

Reflecting some remaining uncertainty among officials, Pasco County Clerk of Court Paula O'Neil, who learned of Hinkle's ruling from a reporter, said she would wait to consult her legal counsel before deciding on a course of action.

"If it's determined that it's legal, than we will issue marriage licenses on Tuesday," she said.

Florida Gov. Rick Scott, who has steadfastly opposed same-sex marriage, did not comment publicly on the judge's order. His second inauguration, scheduled for Tuesday, is expected to take place on the same day that gay Floridians are first allowed to marry.

In 2008, 62 percent of Florida voters approved a constitutional amendment restricting marriage to a man and woman. Now it is poised to become the 36th state where gay marriage is legal. The shift makes it an outlier in the South, where the last legal battles over gay marriage are being fought and where polls have shown opinions have not changed as rapidly as in the rest of the country. Among Southern states, only the Carolinas currently allow gay couples to wed.

Hinkle's order on Thursday ensured that Florida will follow suit.

"Reasonable people can debate whether the ruling in this case was correct and who it binds," Hinkle wrote, referring to his August decision finding the state's marriage ban unconstitutional. "There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case."

Clerks who refuse to issue licenses to gay couples should "take note," he wrote, issuing a blunt warning that those who choose not to follow his ruling are essentially inviting lawsuits and legal fees.

"History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law," wrote Hinkle, appointed to the federal judiciary by President Bill Clinton. "Happily, there are many more instances when responsible officials followed the law, like it or not."

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"This is a wonderful development," said ACLU of Florida attorney Daniel Tilley, who represented eight same-sex couples in the federal lawsuit.

"We expect all clerks to respect the ruling," he said. But his organization is prepared to sue those who do not. "We are committed to ensuring marriage equality in all 67 counties in Florida, and we would like to hear from any couples that are wrongfully denied a license after the stay expires."

James Brenner and Charles Jones, the couple in Tallahassee who first challenged Florida's marriage ban in federal court, celebrated Hinkle's decision on Thursday. Married in Canada in 2009, they were considered single under Florida law, where the state's marriage ban prevented Brenner from designating Jones as his spouse while enrolling in the state's retirement program.

"It's a very good day for everybody," Brenner said. "And I know there's a lot of smiles out there right now on the part of a lot of people who were wondering if we would ever get here. It's time."

Brenner said he remains concerned that the clerk in Leon County, which includes Tallahassee, will not heed Hinkle's order. He plans to accompany another couple, friends of his, to the clerk's office on Tuesday morning to ensure they receive a license. If they don't, he said, his attorneys are on speed-dial.

Uncertainty about how to interpret Hinkle's August ruling took hold among clerks after they were initially advised by the law firm that represents Florida's clerk's association, that the judge's decision did not apply to clerks not named in the federal lawsuit. The law firm, Greenberg Traurig, warned clerks outside of Washington County that if they chose to issue licenses, they could be prosecuted or forced out of their elected positions.

The firm's advice, which was strongly disputed by attorneys for the plaintiffs, led Washington County's clerk of court to request that Hinkle clarify his opinion.

On Thursday, the law firm reversed its recommendation.

"Judge Hinkle's order states that any clerk refusing to issue a license could be subject to civil damages and liability for the plaintiffs' fees and costs," said the firm's co-president, Hilarie Bass. "Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle."

In the days preceding Hinkle's order, Florida's clerks have dealt with the confusion differently, their divergent responses reflective of the state's upside-down political geography.

On Thursday, the same day Orange County's clerk of court said she would issue marriage licenses, clerks in Duval, Clay, and Baker counties in the northeast said they would stop the long-standing practice of performing courthouse weddings rather than marry gay couples. Though the courts could require them to issue marriage licenses, the clerks said their employees were uncomfortable officiating same-sex weddings.

John Stemberger, president of the conservative organization Florida Family Action Inc., which spearheaded efforts to pass the state's gay-marriage ban, broadcast his opposition to the judge's order on Twitter. It is "being widely misinterpreted" he wrote.

"Judge Hinkle has no jurisdiction outside the Northern District of Florida to bind any clerk outside of North Florida,'' Stemberger, who is an attorney, wrote.

Pat Frank, the Hillsborough clerk, said she expects more clerks of court, particularly in small, rural counties, to stop holding wedding ceremonies. At a meeting of Florida clerks held last year, which Frank attended, at least half a dozen clerks stood up and voiced opposition, based largely on their religious beliefs, she said.

Although Hinkle's order answers the most pressing question for state officials, his is not the final word. Following the judge's August ruling, Bondi appealed to the 11th U.S. Circuit Court of Appeals in Atlanta and asked the court to block marriages from taking place before it could rule. The court refused her request, as did the U.S. Supreme Court. But the merits of her appeal have yet to be ruled on.