Miami-Dade County Circuit Court Judge Sarah Zabel has scheduled a hearing for next Monday at which time LGBT rights advocates expect she will clarify whether her stay on Pareto, a local lawsuit challenging Florida's ban on same-sex marriage, will continue past January 5, the day a federal judge's stay on a similar case is set to expire..
On July 25, Judge Zabel struck down Florida's bans on same-sex marriage because she found that they violated the Due Process and Equal Protection Clauses of the United States Constitution.
"... it has become increasingly obvious that it is not constitutionally permissible to deny same-sex couples the right to marry," she wrote in her ruling.
Zabel ruled in favor of the six plaintiff couples in Pareto and ordered that if a higher court affirmed her decision, then Miami-Dade County Clerk Harvey Ruvin, the named defendant in the lawsuit, would be required to issue marriage licenses to the plaintiffs and to all otherwise qualified same-sex couples in Miami-Dade County who apply for marriage licenses.
While on appeal, Pareto was subsequently merged with the Huntsman case in Monroe County, and has yet to be heard by the Third District Court of Appeal. This is required before the case can be reviewed by the Florida Supreme Court.
On Aug. 21, federal Judge Robert Hinkle struck down Florida's statutory and constitutional bans on same-sex marriage in Brenner and Grimsley v. Scott because he, like Zabel, found that they violate the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Hinkle immediately stayed his ruling until the Supreme Court of the United States (SCOTUS) lifted stays on lower court rulings in the Fourth Circuit and in Utah. A 90-day stay extension went into effect on Hinkle's injunction when SCOTUS refused to hear all appeals this term regarding state bans on gay marriage.
Hinkle declared the stay to give enough time to "provide reasonable assurance" that once same-sex marriage is brought to Florida that it is not again banned through a higher court decision. During the stay period, state officials appealed Hinkle's decision to the U.S. Court of Appeals for the 11th Circuit. That court, which is based in Atlanta, has yet to hear the case.
Though the state has requested that Hinkle further extend his stay until a decision is reached by the higher court, he has declined. Not budging from his arranged time frame. Florida officials then filed motions to the 11th Circuit Court and SCOTUS to extend the stay, but their attempts were also rejected by both courts (although the 11th Circuit Court did grant the state's request for an expedited review). In response, Florida Attorney General stated this month that:
"... the United States Supreme Court denied the State's request for a stay in the case before the 11th Circuit Court of Appeals. 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. Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5."
Now, unless the 11th Circuit Court makes a decision against legally recognizing same-sex couples before the end of the day on January 5 -- which is unlikely according to legal experts -- then Hinkle's ruling will go into effect next Tuesday.
However, what exactly Hinkle's injunction means for Florida county clerks has been the subject of debate among Florida officials.
Photo by George Martinez
The confusion began in July when one of the state's top law firms, Greenberg Traurig, sent a memo to one of its clients, the Florida Association of Clerks and Comptrollers, advising county clerks that they should not issue marriage licenses to same-sex couples because they could face a $1,000 fine and possible prison time for not enforcing the gay-marriage ban. In a memo the law firm concluded:
"Clerks who are not named defendants in the litigation would not technically be bound by a decision of the Northern District of Florida, or by the circuit courts. While such Clerks might feel public pressure to follow the guidance of the decision of a court of competent jurisdiction (but no precedential authority), Florida's same-sex marriage ban would still be in place unless they were named parties in one of the lawsuits striking the ban. Thus, issuing same-sex marriage licenses would place them at risk of criminal violation of Florida's same-sex marriage ban - if and until the ban is invalidated by a Florida district court of appeal (absent inter-district conflict), the Florida Supreme Court, or the U.S. Supreme Court."
Greenberg Traurig stated this month they came to this conclusion based on the rules of law that show a person who is not a named party in a litigation cannot be bound by a trial court's order or injunction, and that a federal district court's order does not have binding precedential effect on other courts, state or federal.
However, according to LGBT advocates Judge Hinkle's order does apply statewide because as a federal judge he has the the power to hear and determine suits that challenge the constitutionality of a law.
"The only 'confusion' about Judge Hinkle's order is in the minds of those who are searching for ways to delay or perhaps stop his injunction from taking place," said James Brenner, who is fighting to have his out-of-state marriage with Charles "Chuck" Jones recognized by the state. "Those seeking to stop this progress have fears about change and especially change their religious advisers tell them is wrong."
Because of the differing information, last week, when the Associated Press (AP) polled 53 of the state's 67 county clerks, 46 of them said they would not issue marriage licenses to same-sex couples come January 6. Among the many clerks who stated they would not was Lee County Clerk Linda Doggett, who publicly stated that:
"... the Florida constitutional ban still applies in most counties including Lee County making the issuance of same-sex marriage licenses illegal for our office."
Clerks have stated that their obligation to enforce the ban will not change until a binding order is issued by a court of proper jurisdiction saying otherwise. Since the AP's poll, all of Florida's county clerks have been officially notified of Hinkle's orders through Brenner's attorney Bill Sheppard. Specifically, the clerks have been notified of paragraph four of the injunction, which LGBT advocates believe is meant to bind county clerks along with Chad Poppell, the secretary of the Florida Department of Management Services and Florida Surgeon General John Armstrong in complying with Hinkle's order to no longer enforce the gay marriage ban.
However, in a mandatory response filed last night by Pam Bondi on behalf of Poppell, she stated if Hinkle's "Court intends for paragraph 4 to bind a Florida clerk of court (or all Florida clerks of court), additional specificity may be appropriate to place any such clerk on proper notice."
Until Hinkle further clarifies the reach of his order, Bondi believes that the letters sent out to the Florida clerks may not constitute "proper" notice. She also argues that county clerks are independent constitutional officers who cannot be compelled to issue marriage licenses to same-sex couples under Poppell or Armstrong.
According to the Miami-Dade County Clerk's Office, Ruvin will only administer marriage licenses to couples under the direct order of Zabel. According to her ruling in July, Zabel specifically ordered that when she does lift the stay on Pareto that Ruvin will not be prosecuted under section 741.05 of Florida Statutes for attempting to comply with her order.
The statute, as previously mentioned, makes it a misdemeanor of the first degree for a circuit court judge or county clerk to violate the provisions of Florida's ban. However, if Zabel lifts her stay in unison with Hinkle's stay expiring, it may prevent Ruvin from the legal repercussions of issuing marriage licenses to same-sex couples next week.
It remains to be seen whether Hinkle's injunction will prompt Zabel to lift her stay.
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Still, in the excitement that marriage equality may soon come to the Magic City the plaintiffs in the Pareto case are overflowing with emotion.
"We're humbled to be among the Plaintiffs of what was the first marriage equality case to be filed in Florida," said Todd Delmay, who with his partner Jeff make up one of the six couples in the suit. "And we're excited that our judge could lift her stay and again affirm Miami Dade's important role in history and the advancement of Civil Rights, especially for the gay community."