U.S. Federal Court Judge Robert Hinkle today made it clear that all clerks of court in Florida should begin issuing marriage licenses to same-sex couples on Tuesday. This announcement was a clarification in the case of Brenner v. Scott.
In recent weeks, confusion spread amongst Florida's clerks of courts as to whether they should follow the advice from their legal counsel or comply with Hinkle's federal ruling, which declared the state's bans on same-sex marriage to be unconstitutional. In mid-December, Greenberg Traurig advised clerks across the state not to issue marriage licenses to same-sex couples because Hinkle's ruling would only apply to the county where the Brenner lawsuit was filed.
However, Hinkle clarified (beyond all doubt) that his ruling affects all of Florida's clerks. He wrote in an order today:
"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. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney's fees."
Among the clerks who were awaiting Hinkle's clarification is Broward County Clerk of Court Howard Forman, who stated this past week he would be prepared to issue marriage licenses to same-sex couples if Hinkle explicitly stated his injunction has statewide effect.
In Miami-Dade, Circuit Court Judge Sarah Zabel had declared Florida's bans on same-sex marriage unconstitutional in July during another case, Pareto v. Ruvin, but she stayed her own ruling until a higher court affirmed her decision. Zabel has scheduled a hearing in her courtroom in downtown Miami on Monday, and will likely lift her own stay.
On Tuesday marriage equality will debut across Florida, the nation's third most populated state.
Still, despite today's actions, the Brenner case is being appealed --- and it's entirely possible that the 11th Circuit Court of Appeals could reverse Hinkle's decision when it rules, which is likely in the coming months. It's also possible that the Supreme Court of the United States could weigh in the constitutionality of gay marriage. We explained in more detail earlier today how these possible legal scenarios could play out in court.