Gay Marriage in Florida Might Be Legal Tuesday, But Could Still Be Reversed by Appeals Court

Marriage equality is poised to come to Florida next week, assuming that federal judge Robert Hinkle does as expected and declares that his injunction has statewide effect.

Even if that happens, though, there's still a chance that an appeals court could reverse his decision. So hundreds of Southern religious leaders have come together to persuade the 11th Circuit Court of Appeals to affirm the pro-equality ruling Hinkle made on August 21.

During the summer, Hinkle struck down Florida's statutory and constitutional bans on same-sex marriage, declaring them to violate the Fourteenth Amendment. He put a stay on his decision, but that expires January 5. Gay marriages are expected to proceed January 6, though it's still up to Hinkle to declare whether his decisioon applies to the whole state or only Washington County, in the panhandle, where the law was challenged in a lawsuit.

Florida officials appealed Hinkle's decision to the 11th Circuit Court based in Atlanta. The officials also asked the higher court to extend Hinkle's stay until it reaches a decision. The court denied the stay, but some LGBT advocates fear that the appeals court may overturn Hinkle's ruling when it finally decides the case, likely in the coming months. This could invalidate the newly issued marriage licenses.

"Many court watchers expect us to lose because Atlanta is very conservative," said James Brenner, a plaintiff who is challenging Florida's ban with his partner Charles "Chuck" Jones. "If Atlanta reverses Judge Hinkle's decision, then there is a conflict. In that case the U.S. Supreme Court (SCOTUS) would be required to hear our case."

Pam Bondi had asked the U.S. Supreme Court to extend Hinkle's stay, but the court denied it. It has largely stayed out of gay marriage cases, leaving the decisions to states, but because some circuits have ruled gay marriage bans unconstitutional while others have allowed them to stand, suggesting SCOTUS may have to weigh in on them in the new term.

According to McClatchy news service:

On Jan. 9, the justices will convene in a private conference to consider which cases will get full hearings next year. The stack of petitions awaiting them includes multiple challenges to same-sex marriage bans, with opponents as well as supporters of the restrictions agreeing that the court must act.

Religious leaders from Florida, Georgia and the Heart of Dixie Itself, Alabama, have signed an amicus brief, weighing in on Brenner's case to the 11th Circuit Court of Appeals.

The spiritual leaders, who come from diverse religious affiliations, write that in the U.S. there is no one view among people of faith when it comes to same-sex marriage. They also write that many religious traditions have affirmed, and continue to affirm, the human dignity of LGBT individuals.

"The American religious panorama embraces a multitude of theological perspectives on lesbian and gay people and same-sex relationships. A vast range of religious perspectives affirms the inherent dignity of lesbian and gay people, their relationships, and their families. This affirmation reflects the deeply rooted belief, common to many faiths, in the essential worth of all individuals and, more particularly, the growing respect accorded within theological traditions to same-sex couples. Thus, some faiths celebrate same-sex couples' marriages identically to those of different-sex couples.

For the foregoing reasons, Amici respectfully submit that the Court should affirm the judgment of the court below that Florida's ban on marriages of same-sex couples is unconstitutional."

Still, there are some faith-based groups who are fighting the legalization of same-sex marriage in Florida next week.

This past Tuesday, Florida Family Action, one such group, filed two lawsuits against Orlando's mayor Buddy Dyer, Osceola County Clerk of Court Robert Armando Ramirez and Osceola County Circuit Court Judge Robert LeBlanc to keep them from issuing marriage licenses to same-sex couples.

The group contends that the effect of the federal court order only applies to Washington County, which was explicitly named by Hinkle in his injunction for Brenner v Scott. The group cited the legal advice of the private law firm Greenberg Traurig as the reason of its stance:

"The law firm Greenberg Traurig, which is legal counsel to the Florida Association of Court Clerks and Comptrollers, issued a legal memorandum on December 15, 2014, advising clerks throughout the state not to issue marriage licenses to same-sex couples because the Brenner Order does not apply to any clerk outside of Washington County."

The group goes on to say that any clerk who issues marriage licenses will be committing a misdemeanor that would be punishable by up to one year in county jail and $1,000 fine.

The leader of Florida Family Action, John Stemberger, publicly stated that "All three of these officials have shown great contempt and disrespect for the rule of law and are behaving irresponsibly and unprofessionally. The federal court decision is clear that it only applies narrowly to the two plaintiffs and only in Washington County."

However, Elizabeth "Betsy" White, an attorney with the law firm Sheppard, White Kachergus & DeMaggio, which represents the LGBT plaintiffs in Brenner, is shocked at the prospect that clerks would follow the advice of a private law firm and disrespect a federal court judge's orders.

"The state previously conceded that Hinkle's injunction could have a statewide effect" said White. "Is Pam Bondi going to prosecute clerks for complying with a federal court's order? The issue at hand is really whether the state officials can enforce a statute (the ban) that has been declared unconstitutional and according to the law, they cannot."

Though Florida Family Action is nevertheless pressing its lawsuit, among the hundreds of faith leaders who signed the amicus petition was Rev. Richard Branch of the First United Methodist Church in Pensacola, who publicly stated this past week that he hopes clerks may soon issue same-sex couples marriage licenses.

"As a Christian minister, I am wholeheartedly in support of treating all people with love and respect, just as God loves and respects each of us," said Branch in a public statement. "There are plenty of us Christians in Florida who believe that every Floridian's civil rights should be protected, and that every Floridian should be treated by society and by the State of Florida as a valued member of society."

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Jonathan Kendall
Contact: Jonathan Kendall