The Laker/Lutz News

Equality Florida

Bondi asks court to clarify same-sex marriage ruling

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Saying she’s trying to correct the exact situation she originally tried to avoid, state attorney general Pam Bondi is asking U.S. District Judge Robert Hinkle to clarify his August ruling that some say would make Florida the 36th state to allow same-sex marriage.

Both sides of the controversial issue are battling over what appears to be ambiguity in Hinkle’s ruling, which ordered a Panhandle county clerk to issue a same-sex marriage certificate following one of several cases making their way through the court. Bondi and a vast majority of the county clerks — including Pasco County’s Paula O’Neil — have said they will not begin issuing licenses the day after the stay is lifted Jan. 5, claiming it’s unclear if the ruling affects them, or just Washington County, which was originally sued.

“Due to this legal uncertainty, our clerk … has been advised by the Florida Court Clerks & Comptroller’s association and its legal counsel to refrain from issuing same-sex marriage licenses without a binding order issued by a court of proper jurisdiction,” O’Neil spokeswoman Debbie Gay said in a statement last week.

However, same-sex marriage proponents claim county clerks like O’Neil could be in legal trouble if they refuse to start issuing marriage certificates next week.

“Any Florida clerk who refuses to follow the Constitution’s command, and who withholds marriage licenses from couples once the stay expires, is on the wrong side of history, and the wrong side of the law,” said Shannon Minter, legal director for the National Center for Lesbian Rights, in a statement through the gay rights advocacy group Equality Florida. “There is one Constitution, Florida is one state, and all Floridians are entitled to equal treatment throughout the state.”

In a motion filed Monday with Hinkle’s court, Bondi looked for the judge to clarify the ruling.

“The widespread confusion that now exists, as evidenced by multiple media reports, is precisely what the attorney general’s office sought to avoid while seeking a stay pending final resolution in favor of either side of the issue,” Bondi spokeswoman Jenn Meale said in a statement. “As stated in the response filed (Monday), if the federal court intended the injunction to have effects beyond those that appear on its face, the court may wish to provide appropriate clarification.”

The U.S. Supreme Court refused to intervene in the Florida case last week, where Hinkle struck down laws banning same-sex marriage, saying the state’s ban violated the 14th Amendment of the U.S. Constitution, which provides for equal protection under the law. Hinkle refused to keep a stay in place for further appeal, which would technically allow same-sex marriages beginning Jan. 6.

It’s not clear if or when Hinkle will respond to the motion with more clarification, or if it will come ahead of the Jan. 6 date the stay is expected to be lifted.

Pasco won’t issue same-sex marriage licenses Jan. 6

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Florida is set to become the 36th state in the nation to allow same-sex marriages just after the new year starts. But don’t expect Pasco — or even neighboring counties — to join in.

The U.S. Supreme Court refused to intervene in a Florida case, where U.S. District Judge Robert Hinkle struck down laws banning same-sex marriage in August, saying the state’s ban violated the 14th Amendment of the U.S. Constitution, which provides for equal protection under the law. Hinkle refused to keep a stay in place for further appeal, which would technically allow same-sex marriages beginning Jan. 6.

Florida Attorney General Pam Bondi appealed that decision to the Supreme Court, which decided last Friday not to reinstate the stay that would’ve put a hold on Hinkle’s decision.

Yet, there continues to be quite a bit of ambiguity when it comes to the court ruling, and whether or not county clerk’s offices — like Paula O’Neil’s locally — would be allowed to start issuing same-sex marriage licenses on Jan. 6.

“Due to this legal uncertainty, our clerk … has been advised by the Florida Court Clerks & Comptroller’s association and its legal counsel to refrain from issuing same-sex marriage licenses without a binding order issued by a court of proper jurisdiction,” said Debbie Gay, the interim director of records in O’Neil’s office, in a release.

On her website, O’Neil said there “has been a lot of press” about same-sex marriage in Florida, and as a constitutional officer, she is required to “support, protect and defend” the U.S. Constitution, as well as both federal and state laws. Those state laws, she said, currently prohibit marriage licenses to a couple that is not a man and a woman, and that a clerk who violates that prohibition is guilty of a criminal act that would make them subject to both fine and imprisonment.

The case Hinkle decided, O’Neil said, was specific to those who sued Washington County, and does not have authority or provide protection for clerks of court outside that county to issue same-sex marriage licenses.

Bondi, responding to the Supreme Court decision, also remained ambiguous on what the ruling would mean once the stay is lifted Jan. 5.

“Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage,” Bondi said in a statement. “Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”

Although clerks like O’Neil may be worried about criminal penalties if they start issuing same-sex marriage licenses, some gay rights groups warn clerks should be worried if they don’t.

“Any Florida clerk who refuses to follow the Constitution’s command, and who withholds marriage licenses from couples once the stay expires, is on the wrong side of history, and the wrong side of the law,” said Shannon Minter, legal director for the National Center for Lesbian Rights, in a statement through the gay rights advocacy group Equality Florida. “A discredited memo from a law firm won’t provide much protection against the risk of being sued for unconstitutional actions, and being held liable for any damages — and attorney fees — incurred by couples as a result of withholding the freedom to marry. There is one Constitution, Florida is one state, and all Floridians are entitled to equal treatment throughout the state.”

Minter is referring to the legal opinion from the Greenberg Traurig law firm that clerks like O’Neil are adhering to in deciding whether or not to issue same-sex marriage licenses.