Last week, U.S. District Judge Robert Hinkle ordered the state to respond to his same-sex marriage ruling by midnight Monday. And just before the midnight deadline hit, the state threw it back to Hinkle and said he needs to make the ruling.
Hinkle, who had previously ruled that Florida's same-sex marriage ban was unconstitutional, asked the state for a response on whether county clerks will be legally allowed to issue marriage licenses to same-sex couples come January 6. But on Monday evening, Florida Attorney General Pam Bondi said that it's Hinkle who must decide if his overturning of the same-sex marriage ban applies to the entire state or just to the specific county where he ruled on.
Earlier this month, a Tallahassee-based law firm that represents the Florida Association of Court Clerks and Comptrollers sent out a memo advising 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.
Same-sex marriage is set to essentially become legal come January 6, the day after Hinkle's stay on the marriage ban expires. But the memo said that the lifting of the stay applied only to Washington County, where the case was filed, and not the rest of 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.
In response to that memo, Howard Simon, executive director of the ACLU of Florida, released a statement questioning the idea of county clerks being charged for handing out marriage licenses.
"Let's leave the legalistic hypotheticals for the law school classroom and look at the practical reality," the statement reads. "Are local officials seriously preparing to arrest and criminally charge county clerks for enforcing a federal judge's order? That's preposterous."
Simon added that Bondi could help the situation and end the confusion by "saying that a judge's ruling definitively striking down Florida's ban means that all Florida couples deserve the rights and protections that come with marriage."
Bondi had asked the Supreme Court to take up her appeal of Hinkle's ruling, but the court denied that request, leaving Hinkle and the state to clarify the confusion.
In a court filing Monday night -- filed two hours before the deadline Hinkle set -- Bondi's office said that it was up to Hinkle to decide if his ruling applied only to Washington County.
The five-page filing, written by state Solicitor General Allen Winsor and Chief Deputy Solicitor General Adam Tanenbaum, said county clerks are "independent constitutional officers."
"If the Court intends the injunction to have effect beyond those that appear on its face... the Court may wish provide appropriate clarification," the filing reads. "This Court is best situated to determine the reach of its own order."
Hinkle's original ruling in August 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. At the time of his ruling, Hinkle called Florida's ban on same-sex marriage simple discrimination. But he immediately stayed his ruling to allow time for appeals, which he anticipated. The stay expires January 5, which many interpret to mean that same-sex couples can get married come January 6 across the state.
Bond's office is now asking Hinkle to decide on his own ruling, which could essentially end the same-sex marriage ban in Florida.