U.S. District Judge Robert Hinkle has ordered Florida to respond on its position concerning his ruling on same-sex marriage by today, Monday, December 29.
Particularly, Hinkle is waiting for a response on whether county clerks will be legally allowed to issue marriage licenses to same-sex couples come January 6. Earlier this month, a Tallahassee-based law firm, which represents the Florida Association of Court Clerks and Comptrollers, sent out a memo saying that anyone who issues a marriage license to an LGBT couple, even for after January 6, will be committing a misdemeanor that would be punishable by up to one year in county jail.
Last week, Hinkle ordered the defendant in the civil suit he ruled on, the Florida Department of Management Services, to advise Washington County's clerk whether the injunction on the same-sex marriage ban "binds a Florida clerk of court" by today.
Back in August, Hinkle became the fifth judge in the state to rule against the same-sex-marriage ban.
The case involved ten same-sex couples, most of whom were married outside of Florida and were looking for their marriages to be recognized by the state. Among the plaintiffs was a woman whose wife had recently passed away. The widow had been seeking for her spouse's death certificate to reflect their relationship of almost 50 years.
At the time of his ruling, Hinkle said Florida's ban on same-sex marriage is simple discrimination and compared it to a time when interracial marriage was banned in America. He also said that history will judge this to be true and that there should be no limits to liberty or tolerance.
"When observers look back 50 years from now, the arguments supporting Florida's ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination," Hinkle wrote in his ruling in August. "To paraphrase a civil rights leader from the age when interracial marriage was struck down, the arc of history is long, but it bends toward justice."
However, Hinkle immediately stayed his ruling to allow time for appeals, which he anticipated. But that stay expires January 5, which many interpreted to mean that same-sex couples can get married come January 6.
Court clerks, looking for clarity on whether they definitely had the go-ahead to begin issuing licenses, relied on Tallahassee law firm Greenberg Traurig for advice. But the firm advised in a memo that Hinkle's ruling would apply only to the plaintiffs named in the case and not to other same-sex couples.
Although gay advocacy groups disagreed with this interpretation -- Equality Florida, along with the National Center for Lesbian Rights, issued its own legal memo last week to all 67 Florida county clerks, saying that the memo from the law firm was incorrect in several points, including that "a federal court order is binding not only on the parties to the case, but also on all 'persons who are in active concert or participation with' any of the parties" -- many clerks indicated they would follow Greenberg Traurig's advice. Last week, the Associated Press polled 53 state clerks, 46 of whom said they would not be issuing marriage licenses January 6, fearing legal action against them from the state.
Last week, an attorney for a Washington County clerk filed an emergency motion seeking clarification on whether marriage licenses can be issued to other same-sex couples not involved or mentioned in the original lawsuit Hinkle ruled on.
To end the confusion, Hinkle has ordered a clarification, asking for the response to be "explicitly set out the secretary's position" on of his ruling "binds a Florida clerk of court."
You can read the full Equality Florida memo below: