Gay marriage plaintiffs: Issue licenses statewide
TALLAHASSEE, Fla. – Court clerks throughout Florida are bound by a federal judge's ruling that struck down the state's ban on same-sex marriage and should start issuing marriage licenses to gay couples next week, plaintiffs' attorneys argued in a court document Monday.
The state also was required to file its legal position on the issue Monday, though a document had not been posted on the federal-court docket as of 8 p.m.
U.S. District Judge Robert Hinkle, who in August found the state's ban on same-sex marriage unconstitutional, ordered the state to respond Monday to an emergency motion from the Washington County clerk. That emergency motion sought clarification about whether the clerk would be required to issue marriage licenses starting Jan. 6 to all same-sex couples -- or only to two Washington County men who were named plaintiffs in the case.
Hinkle ruled in August that the voter-approved ban on gay marriage was unconstitutional. But he placed a stay on the ruling amid legal appeals. That stay will expire at the end of the day Jan. 5, opening the door for same-sex marriages to start the following day.
In the document filed Monday in federal court in Tallahassee, attorneys for same-sex couples quoted from arguments that the state has made in other proceedings in the case. In those arguments, the state said Hinkle's rulings would have "statewide effect," according to the plaintiffs' filing Monday.
Also, the plaintiffs' attorneys focused on part of Hinkle's August ruling that said it binds the secretary of the Florida Department of Management Services, state Surgeon General John Armstrong and "their officers, agents, servants, employees, and attorneys --- and others in active concert or participation with any of them."
The plaintiffs argued that county court clerks work in concert with the Department of Health, which is headed by the surgeon general and is in charge of marriage forms and records. As a result, they said Hinkle's ruling should apply to clerks throughout the state.
"Thus, the clerks of court are agents or at least in active concert with defendant Armstrong,'' said the document, filed by Jacksonville attorney William Sheppard, who is helping lead a legal team in the case. "As agents or other persons in active concert with defendant Armstrong, they are bound by … this court's order."
The legal wrangling comes after attorneys for the Florida Court Clerks & Comptrollers this month issued a memo that said Hinkle's August ruling only applied to the named plaintiffs in the case and not to other same-sex couples in the state. It also warned clerks that they could face prosecution if they issued marriage licenses to gay couples.
"We remain of the opinion that clerks of court who were not parties to the Northern District case (finding the ban unconstitutional) are not bound by Judge Hinkle's order --- or protected by it,'' said a Dec. 15 legal memo from attorneys for the group. "Clerks are subject to Florida's criminal penalties for the issuance of marriage licenses to same-sex couples."
The Washington County clerk, Lora Bell, has made clear she will comply with Hinkle's ruling and issue a marriage license to Washington County residents Stephen Schlairet and Ozzie Russ, a same-sex couple named as plaintiffs in the lawsuit. But after the Florida Court Clerks & Comptrollers memo, Bell's attorney asked for clarification about whether she would need to issue licenses to other gay couples who might apply.
The clerk's emergency motion added fuel to a debate that already had been building about the memo from the Florida Court Clerks & Comptrollers.
In the document filed Monday, the plaintiffs' attorneys took on the arguments in the memo. As an example, they disputed that clerks could be prosecuted for issuing marriage licenses to same-sex couples.
"Even if the clerks theoretically could be prosecuted … they could assert the unconstitutionality of the ban as a defense,'' the document said. "Moreover, any convictions under this statute would be vacated in light of this court's (Hinkle's) order."
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