Pam Bondi Tries to Slink Away From Gay Marriage Fight Before Plaintiffs' Attorneys' Fees Are Paid

On June 26 of this year, the Supreme Court of the United States ruled that state-level bans on same-sex marriage — like the one Florida had in place since 2008 — are unconstitutional because they violate the due-process and equality clauses of the 14th Amendment. The ruling, in the case Obergefell v. Hodges, came as Florida was already facing several lawsuits challenging its ban on gay marriage.

In one of those lawsuits, Brenner v. Scott, U.S. Federal Court Judge Robert Hinkle had already declared Florida’s ban on same-sex marriage unconstitutional in August 2014. State officials had appealed Hinkle's ruling to the 11th Circuit Court of Appeals, but that court deferred from making a ruling until the U.S. Supreme Court made its decision. 

Fast-forward to this July. The state, conceding defeat, filed a "Suggestion of Mootness" asking that its appeal be dismissed as moot and also asked that another similar case filed in federal court in northern Florida be dismissed on the same grounds. Attorney General Pam Bondi essentially promised that the state will not enforce its same-sex marriage ban, writing, “In light of the Supreme Court’s decision in Obergefell, the defendants will not enforce the laws challenged in this case. The Court should dismiss this case as moot and deny the motion for summary judgment.”

But the plaintiffs in the Brenner case oppose dismissal of the appeal for two reasons: One, they're still fighting for attorneys' fees, and two, dismissing the case in this manner would essentially keep the law on the books, they worry. 

Plaintiff Jim Brenner says, “[If the case is dismissed] there will never be a final order from Judge Hinkle's landmark Decision on August 21, 2014, that the ban and the constitutional amendment are unconstitutional,” said Brenner. “So they will remain in place.” Brenner fears if the political climate becomes less tolerant of the LGBT community, the ban could be enforced in the future (though that would be unlikely). Still, he fears, “With a religious theocracy looming, who knows where this will go?”  

Brenner’s attorney, Bill Sheppard, wrote in court documents that the state's appeal should not be dismissed because state officials' promise to follow the Obergefell decision is not voluntary but "compelled" by the decisions of Hinkle's and the U.S. Supreme Court:

"Even where a defendant voluntarily ceases the offending conduct, a case will not be rendered moot if there is still an outstanding claim for attorney's fees... Appellant's claims that they have now committed to follow the Obergefell decision at this juncture sound particularly suspicious, since adjudication dismissing the case here would absolve them of any obligation to pay the Brenner appellee's fees." 

He also mocked the state's assertion that it had agreed to stop the ban in a "voluntary" manner. He wrote: "Even if a promise to follow the law by the Defendants in their motion to dismiss was genuine, such a promise is simply too clandestine to carry the force of law in Florida and too late in the game to be considered unambiguous." 

Sheppard wrote, "The controversy in this case remains [a]live because the Brenner Appellees still seek a permanent injunction defining the scope of their remedy and attorney’s fees. Accordingly, the Appellants’ Suggestion to Dismiss should be denied.”

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Jonathan Kendall
Contact: Jonathan Kendall