TALLAHASSEE, Fla. – In the latest twist in Florida's legal battle about same-sex marriage, the Washington County clerk of court asked a federal judge Tuesday whether she will be required to issue marriage licenses to all gay couples who apply starting Jan. 6.
Washington County, which is north of Panama City in the Panhandle, has become a key part of a case that successfully challenged Florida's voter-approved ban on same-sex marriage. Two plaintiffs in the case, Stephen Schlairet and Ozzie Russ, are a same-sex couple who live in Washington County.
In an emergency motion filed Tuesday in federal court in Tallahassee, an attorney wrote that the clerk will comply with a ruling that struck down the ban and issue a marriage license to Schlairet and Russ when a stay on the ruling expires at the end of the day Jan. 5. But the motion seeks clarification about whether the clerk also should issue licenses to other gay couples who might apply.
"The clerk will comply with the injunction (against the same-sex marriage ban) upon the expiration of the stay and, as directed by the court, will issue a marriage license to plaintiffs Schlairet and Russ within the time frame as set forth in the injunction,'' attorney James J. Goodman Jr. wrote in the motion. "However, the clerk anticipates that upon the stay's expiration she will receive other applications for marriage licenses from same-sex couples."
The Washington County clerk is Lora Bell, who was elected last month. She replaced Harold Bazzel, who was named as a defendant in the case.
The emergency motion comes amid a debate about whether marriage licenses will be issued statewide to same-sex couples next month or whether only to the plaintiffs in the lawsuit.
U.S. District Judge Robert Hinkle in August ruled that the ban was unconstitutional but imposed a stay on his ruling that will expire at the end of the day Jan. 5. The U.S. Supreme Court on Friday rejected a request by Attorney General Pam Bondi to extend the stay amid legal appeals.
In Duval County, Clerk of Court Ronnie Fussell released a statement on the issue Tuesday:
"It is the duty of the Clerk of Courts to act in accordance with Florida law. The Duval County Clerk's Office is going to follow the advice of the Florida Court Clerks & Comptrollers' legal counsel that, at this time of uncertainty, it will not issue same-sex marriage licenses until a binding order is issued by a court of proper jurisdiction. The federal court order in Washington County, declaring Florida's same-sex marriage ban as being unconstitutional and taking effect Jan. 6, is binding only to the parties named in that specific case, which includes the Washington County Clerk of Courts. It does not apply to the clerks of the state's other 66 counties.
It should also be noted that Florida Statutes are unique in regard to prohibiting the issuance of a marriage license to a couple that is not a man and a woman, in that it provides that a Clerk who violates this prohibition is guilty of a criminal act and subject to a fine and imprisonment."
That counsel Fussell mentioned came from a legal memo released by the Florida Court Clerks & Comptrollers last week that reiterated the stance Tuesday that Hinkle's ruling only applied to marriage licenses issued by the clerk in Washington County. The memo said the ruling does not open the door for clerks in other parts of the state to issue licenses to same-sex couples starting Jan. 6 and that clerks could face prosecution if they do so.
"In (the ruling), the only clerk of court who was a party to the case in the Northern District, and over whom Judge Hinkle had jurisdiction, was the Washington County clerk,'' said the memo, written by lawyers with the firm Greenberg Traurig. "In this regard, Judge Hinkle specifically enjoined only the Washington County clerk with regard to the issuance of marriage licenses to same-sex couples."
But gay-rights groups and attorneys representing same-sex couples dispute that conclusion and have threatened legal action against clerks who do not issue licenses to gay couples. They contend that Hinkle's ruling applies statewide.
"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," Shannon Minter, legal director for the National Center for Lesbian Rights, said in a prepared statement Monday.
The emergency motion filed Tuesday offers a variation on the broader question, as it asks if the ruling should only apply to Schlairet and Russ and not other gay couples in Washington County. The motion seeks "expedited clarification" of the issues.
"While the injunction undoubtedly orders the clerk to issue licenses to plaintiffs Schlairet and Russ, thus providing the clerk with protection from criminal prosecution for that action, the clerk is uncertain whether the injunction requires her to issue marriage licenses to other same-sex couples," the motion said. "Indeed, the clerk is aware of confusion among clerks of court of counties throughout Florida as to whether or how to implement the court's order."
In Duval County, a group of people planning on getting married still plan to show up at the courthouse after the stay expires.
"I am aware that there are probably a few hundred people at least in Duval County interested in applying for their marriage license," said Carrington Mead, who married her wife in Washington D.C.
Mead created a Facebook page: "Come get married in Hemming Park!!" to promote a wedding event on Jan. 10. She said her supporters are planning for either a mass celebration or a protest.
"It could turn into a demonstration in front of the courthouse," Mead said, "if people are refused their marriage licenses."
Family law attorney Lawrence Datz believes gay marriage will become a reality soon and that it will change family law. He suggested couples wanting to get married wait a bit and see how the issue plays out.
"Our concept of marriage by contract has existed for about 5,000 years," Datz said. "This will be the first major change to it in 5,000 years. We've waited this long, people should be able to wait a little bit longer until it's certain."