UPDATE Saturday 6:47 a.m.   Florida’s solicitor general, Allen Winsor, notified the U.S. Court of Appeals for the Eleventh Circuit on Friday that the state would file no reply brief in its pending appeal there.  The letter is here.

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UPDATED 1:28 p.m.  Florida Attorney General Pamela Bondi, who had made several efforts to delay same-sex marriage, said in a statement that her office now would “not stand in the way as clerks of court determine how to proceed.”  One state court judge, in Orange County, has cleared the way for a local clerk to issue licenses in that county next Tuesday.

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In a highly unusual order, a federal trial judge in Tallahassee on New Year’s Day moved Florida a long step closer to becoming the thirty-sixth state where same-sex couples can legally get married.  The practical effect of the order, though not its specific terms, appears to be that county clerks in all sixty-seven counties will begin issuing licenses as early as Monday.

Two events on Thursday set the stage: first, U.S. District Judge Robert L. Hinkle clarified his August 21 order striking down the state’s ban on same-sex marriage, and, second, the lawyers for the state association of county clerks promptly told them that they should all grant licenses once the August order expires late in the day on Monday.   The Supreme Court also had a role along the way, refusing on December 19 to delay marriages beyond the early January date.

The events on New Year’s Day brought an end to confusion that had prevailed across Florida about how far Judge Hinkle’s August order was to reach.  The judge ultimately concluded, when asked to clarify, that it applied in a binding way only to a single same-sex couple in a rural, lightly populated area of the state’s panhandle — Washington County.  But he indicated that the Constitution itself left all other county clerks with little choice but to obey.

He had been asked for clarification by the clerk in Washington County, who feared criminal prosecution if the state ban were violated by issuing marriage licenses to couples not covered by Judge Hinkle’s ruling.   Other clerks elsewhere in the state had declined to start issuing same-sex marriage licenses, on advice of their lawyers.

The judge accomplished the wide sweep for his action by warning other clerks that they faced the possibility of being sued, losing in court, and then having to pay civil damages and legal costs, including attorney’s fees.  That part of the new order led a Miami-based law firm, Greenberg Traurig, to switch position on the advice it had given to a client, the Florida Association of County Clerks and Comptrollers.  Now, the firm said, all clerks “should follow the judge’s ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.”

In no other case, in months of heavy activity in federal and state courts over the issue of same-sex marriage, has a judge reached beyond the formal jurisdiction of a single case to achieve such a wide effect.  In some states, though, officials in charge of issuing licenses have interpreted a decision in favor of such marriages in a case in their state to apply to them even though they had not been directly involved.  Other rulings in favor of same-sex marriage covered state officials responsible for enforcing their state’s ban.

The Florida situation is also unusual because there has not yet been a federal appeals court ruling that is binding on all of the states in its geographic region.  The U.S. Court of Appeals for the Eleventh Circuit has not yet even held a hearing on the Florida case that reached it from Judge Hinkle’s court, although a panel of that court had refused further delay beyond January 5 before the Supreme Court similarly refused.

Meanwhile, the Supreme Court is now set to consider on January 9 whether to grant review of any or all of the second round of same-sex marriage cases to reach it in the wake of widespread activity in lower courts since the Justices last spoke on the rights of same-sex couples in United States v. Windsor in late June 2013.  (That decision guaranteed federal marital benefits to all same-sex couples already legally married under their states’ laws.)

The Justices turned down the first round of new cases on October 6.  Before then, same-sex marriage had become legally available in nineteen states and Washington, D.C., either by court ruling, state legislation, or voter-approved change.   Since then, sixteen more states have been added to the list — and now, it appears, a seventeenth.  And, since early October, a split has developed on the constitutional question between federal courts of appeals, increasing the prospect that the Supreme Court will now step in.

If the Justices do grant review of the constitutional question this month, with a hearing likely in April, they will be facing the question in a situation where no more than fourteen states retain a ban on same-sex marriages.  But the symbolic effect of a test case on assuring same-sex marriages nationwide would be profound in a historic sense.

The Court was split five to four in the Windsor case striking down a key part of the federal Defense of Marriage Act.  This Term, two Justices — Antonin Scalia and Clarence Thomas — have voted in favor of delaying lower court rulings striking down marriage bans.  It will take the votes of four Justices to grant full-scale review of any new case.

Four of the new cases are appeals from the U.S. Court of Appeals for the Sixth Circuit, involving each of the four states in its region — Kentucky, Michigan, Ohio, and Tennessee.  The Sixth Circuit upheld each of those state’s bans.

The fifth new case is from Louisiana, challenging a federal trial judge’s decision upholding the ban there.  The Louisiana petition seeks Supreme Court review before the U.S. Court of Appeals for the Fifth Circuit rules on a case pending there.   Merely by coincidence, the Fifth Circuit is scheduled to hold three hours of oral arguments on same-sex marriage cases on January 9 — the same day the Justices are considering new cases.  Those hearings will involve the Louisiana case, first, followed by separate hearings on cases from Mississippi and then Texas.  Federal trial judges have struck down the Mississippi and Texas bans, but those rulings are on hold during the appeal.

In Florida, state courts have also been involved in reviewing that state’s ban, and four judges in separate cases have ruled in favor of same-sex couples.  The issue is now on appeal in a mid-level state appeals court.  The issue has been moving more slowly in state than in federal court.  If same-sex marriages do begin under the federal judge’s ruling, the issue may lose its practical significance in state court.

In the federal case, Judge Hinkle returned, on request, to the question of how far he intended his ruling against the ban to go.  In answering, the judge made a special point of saying that, while the specific terms of his order only required that a marriage license be issued to one couple in Washington County, he clearly expected the broader impact and took steps to assure it.

His cautionary words to county clerks were clear: “History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law.  Happily, there are many more instances when responsible officials followed the law, like it or not.  Reasonable people can debate whether the ruling in this case was correct and who it binds.  There should be no debate, however, on the question of whether a clerk of court may follow the ruling, even for marriage applicants who are not parties to this case.”  He then warned of the consequences of not doing so, stressing that “the Constitution requires the clerk to issue such licenses” and commenting that the duty comes from a source other than his specific order.

The judge did not mention an issue raised by an activist group opposed to same-sex marriage, that he had no authority to act further on the case because it was already on appeal to the Eleventh Circuit Court..

Some of that language was clearly intended to ease the concern of county clerks, and of their lawyers, that the clerks might risk criminal prosecution for facilitating same-sex marriage when there was no binding court order specifically requiring each of them to do so.

Posted in Same-Sex Marriage Post-Windsor, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Same-sex marriage: Close to reality in Florida (FURTHER UPDATED), SCOTUSblog (Jan. 2, 2015, 11:51 AM), http://www.scotusblog.com/2015/01/same-sex-marriage-close-to-reality-in-florida/