With the expiration of a federal stay, January 6th is poised to be the day marriage equality makes its debut in the Sunshine State. But there is lingering confusion whether clerks can issue same-sex couples marriage licenses, with one petitioning for clarification this week.
An attorney in one of the law-changing cases says there's no need for debate. The lawyer, Bill Sheppard, sent letters to every clerk in Florida pointing to a piece of an earlier ruling, which he believes clears up any lingering questions: Yes, clerks do have to issue same-sex licenses on Jan. 6.
"There are attorneys all over Florida ready to jump on this one," says James Brenner, a plaintiff in one of the cases. "It is an easy win. To be blunt, refusing to issue marriages licenses to same-sex couples is a clear violation of the oath clerks took [to uphold the law]."
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 that clerks throughout Florida should not issue marriage licenses to same-sex couples come January because under existing Florida law they could face a $1,000 fine and possible prison time.
Then in August, Tallahassee Judge Robert Hinkle overturned Florida's gay marriage ban. That ruling has been appealed all the way up to the Supreme Court, which ended the fight by refusing to hear Attorney General Pam Bondi's appeal.
But there has been some debate among Florida clerks whether Hinkle's pro-marriage equality ruling applies to all counties, or if it only applies for the northern Florida county specifically mentioned in his injunction. This confusion prompted Lee County Clerk Linda Doggett to state earlier this month that her office would not be issuing same-sex marriage licenses on January 6th.
"Per an opinion recently issued by the Florida Court Clerks & Comptrollers legal counsel, the Florida constitutional ban still applies in most counties including Lee County making the issuance of same-sex marriage licenses illegal for our office. The recent decision only affects the Clerk's office named as a party in the law suit. Until a binding order is issued by a court of proper jurisdiction, the law is not changed. The Clerk's Office is committed to complying with the laws governing our office. We are a ministerial office and it is not our place to determine what services we will or will not provide - rather it is our duty to follow the law."
But advocates say that's all wrong. Brenner and his attorneys contend the only reason Washington County was specifically mentioned in Hinkle's injunction was because it is where co-plaintiffs Stephen Schlairet and Ozzie Russ live. Judge Hinkle ordered in paragraph six of his ruling, in a separate provision of the preliminary injunction, that the Washington county clerk must issue the couple a marriage license "if specific conditions are met."
Judge Hinkle also specially stipulated in his ruling that the Florida Surgeon General John H. Armstrong amend Carol Goldwasser's death certificate immediately (in an exception to his stay) to reflect her same-sex marriage with Arlene Goldberg of Fort Myers.
"There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse's death certificate. Indeed, the state's refusal to let that
happen is a poignant illustration of the controversy that brings us here," wrote Hinkle in his ruling on August 21. "... The defendant Florida Surgeon General must issue a corrected death certificate for Carol Goldwasser showing that at the time of her death she was married to Arlene Goldberg."
On October 8, this order made Goldberg the first person in Florida's history to receive a spouse's death certificate recognizing a same-sex marriage.
Goldberg obtained the certificate through the department of health not the Lee County clerk of court, nor the Washington county clerk. This is because in Florida the department of health, not the county clerks, administers marriage licenses to Sunshine State residents.
That's why Hinkle named Surgeon General Armstrong as the "proper" defendant in the Brenner case, and not Bondi.
Hinkle also ordered that the Secretary of the Florida Department of Management Services Chad Poppell and Armstrong and all their agents (which includes county clerks) to "take no steps to enforce or apply" Florida's ban on same-sex marriage once the stay is lifted.
According to Hinkle's ruling, the order is binding to all agents of the Florida Surgeon General:
"[Paragraph 4:] The defendant Secretary of the Florida Department of Management Services and the defendant Florida Surgeon General must take no steps to enforce or apply these Florida provisions on same-sex marriage: Florida Constitution,
Article I, § 27; Florida Statutes § 741.212; and Florida Statutes § 741.04(1).
... The preliminary injunction binds the Secretary,
the Surgeon General, and their officers, agents, servants, employees, and
attorneys--and others in active concert or participation with any of them--who
receive actual notice of this injunction by personal service or otherwise."
In other words, Brenner's camp contends, any county clerk who receives notice of Hinkle's injunction are legally bound to recognize same-sex couples much like Surgeon General Armstrong already did with Goldberg.
"Here is something no one knows," said Brenner. "Yesterday [my attorney] Bill Sheppard sent 67 letters to all of the county clerks fulfilling the last sentence in paragraph 4 and putting them all on notice that they are agents of the Department of Health and must do their job."
Currently the letters are being sent to every clerk in Florida and expected to be opened after Christmas break.
Though some clerks may still choose not to issue marriage licenses to same-sex couples on January 6, Brenner says doing so would put them in a legal pickle.
"If [the clerks] do refuse one couple they will be hit with a lawsuit," Brenner says. "That you can take to the bank."
In response to an emergency motion to clarify his ruling, Judge Hinkle stated today that from January 6 forward, compliance with his injunction will be mandatory and that:
"By its terms, paragraph 4 binds two Florida officials with statewide jurisdiction--the Secretary of the Department of Management Services and the Surgeon General--and 'their officers, agents, servants, employees and attorneys-- and others in active concert or participation with any of them-- who receive actual notice of [the] injunction by personal service or otherwise.' The Attorney General of Florida is an attorney of record for the Secretary and Surgeon General in these actions." --brenner.pdf
This means that on January 6, notified Florida clerks are legally bound with the Secretary of Department Services Chad Poppell and Florida Surgeon General John H. Armstrong (who both have statewide jurisdiction) from enforcing the Florida laws banning same-sex marriage.
Check out one of Sheppard's official notifications to county clerks here: sheppardletter.pdf
Judge Hinkle also ordered today that Secretary Poppell must respond by December 29 to Washington County Clerk Lora Bell's query whether paragraph four of the injunction prohibits her from enforcing the state's gay marriage ban on any same-sex couple who comes to her office requesting a marriage license.
According to Brenner, the reason Judge Hinkle ordered Secretary Poppell to explicitly state what paragraph four means for Bell is because Poppell is the lead plaintiff in the state's appeal and is also the head of the Florida Department of Management Services, which is responsible for guiding state agencies and employees of their duties as defined by the law.
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"Hinkle wants the people in charge, who have statewide jurisdiction, to tell the clerks what they must do. I think that is a wise move," said Brenner. "I think Poppell is only going to respond to the Washington County court and that the surgeon general will be the one directing the clerks or sending out the information [that Hinkle's injunction is binding]."
Additionally, Judge Hinkle also ordered Secretary Poppell to file copies of documents that explain the effect that the preliminary injunction would have statewide if not stayed. Specifically, that by Florida statute 382.003 (3) the department of health must administer marriage licenses in a uniform manner. Meaning Surgeon General Armstrong, along with his agents, cannot issue same-sex marriage licenses in one county (Washington County, for example) but not in another.
Because of this statute, if Bell begins to issue marriage licenses to all same-sex couples who come to her office requesting them, then the rest of Florida county clerks must do so as well.