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Saturday, January 03, 2015

"Confusion" in Florida

Florida has managed to make a circus of the legalization of same-sex marriage, thanks to AG Pam Bondi and the law firm of Greenberg Traurig, which, as counsel for the clerks' and comptrollers' association, initially issued an opinion advising clerks against issuing marriage licenses to same-sex couples. Come the New Year, and Judge Robert Hinkle issued a clarification of his initial ruling at the request of the Washington County clerk.

The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.
(Emphasis added.)

AG Bondi is bowing to the inevitable, in her own mealy-mouthed way:

"This office has sought to minimize confusion and uncertainty, and we are glad the Court has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."

Lest you're inclined to take this at face value, let me point out that Bondi's office was one of the main contributors to the "confusion."

Greenberg Traurig has done a 180 on this one:

“Judge Hinkle’s order states that any clerk refusing to issue a license could be subject to civil damages and liability for the plaintiffs’ fees and costs,” Bass said. “Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge’s ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.”

And the clerks are falling into line, with one office (Palm Beach, of course) opening at 10:30 pm on Monday, January 5th, to take applications:

So as of the wee hours of Tuesday morning, same-sex marriage in Florida is a done deal -- unless the 11th Circuit, where the case is on appeal, overturns Hinkle's decision. I'm making no guesses there: the pros are clear-cut and formidable; the antis are specious, at best, but this is the circuit that ducked the Florida same-sex adoption suit a couple of years ago, finding that the legislature should be the ones to decide. If the panel does reverse Hinkle, that's just another circuit split headed for the Supreme Court. A new wrinkle, which I just discovered: The Florida Solicitor General has informed the 11th Circuit that the defendants will not submit a reply brief in the case. Sounds like throwing in the towel to me, and boosts the chances of a favorable ruling.

The best reactions come from none other than Liberty Counsel and Florida Family Policy Council. From John Stemberger, head of FFPC:

Judge Hinkle's ruling is being widely misinterpreted. It clearly says that only the clerk Washington County is required to issue a marriage license and only to the two persons in that case. Judge Hinkle has no jurisdiction outside of the Northern District of Florida to bind any clerk outside of North Florida. Clerks outside of North Florida are required to obey the current law and are still subject to all the penalties of a first-degree misdemeanor for violating it.

Stemberger obviously has a problem with reading comprehension. The day's first Through the Looking Glass Award goes to him.

And from Liberty Counsel:

In a highly anticipated ruling to clarify an August preliminary injunction in the federal case Brenner v. Scott, the district judge agreed with Liberty Counsel that the injunction does not require Florida clerks of court outside Washington County to issue marriage licenses to same-sex couples on January 6. Indeed, the new order clarifies that the injunction is limited to the plaintiffs in the case, expressly holding, “The preliminary injunction now in effect thus does not require the [Washington County] Clerk to issue licenses to other applicants.”

Well, Liberty Counsel are not really lawyers, they're propagandists, and propagandists edit reality for a living. Yes, the injunction itself does not require clerks to issue marriage licenses statewide; the part that their statement left out is the part I bolded in the above quote from the ruling: the Constitution requires it. Second Through the Looking Glass Award of the day goes to them.

I can hardly wait to hear how Brian Brown configures this "victory."

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