Marriage to start in Florida

January 6 is the date, but which counties will hold the weddings?

by Anthony Glassman

Washington, D.C.--Marriage is slated to begin in Florida on January 6 after the Supreme Court refused to extend a federal judge?s stay.

Florida Attorney General Pam Bondi petitioned first the 11th Circuit Court of Appeals, who rejected her request to have U.S. District Judge Robert Hinkle?s stay extended until her appeal of his ruling made its way through the courts. The 11th Circuit in Atlanta, which covers Alabama, Florida and Georgia, refused her request, so she took it to the Supreme Court?s Justice Clarence Thomas, who is the point man for 11th Circuit emergency appeals.

The Supreme Court rebuffed her on December 19, after the entire court reviewed her appeal. The order rejecting her petition noted that only Justice Antonin Scalia and Thomas, the two most anti-gay judges on the high court, favored keeping the stay pending appeals.

Bondi said that allowing the stay to expire would create confusion and a lack of uniformity across the state, with some clerks granting marriage licenses to same-sex couples and others refusing them. She pointed to the fact that the case before Hinkle named only the clerk of Washington County, so it could be construed to apply only to that county.

Clerks on December 22 asked Hinkle to clarify whether his ruling applied only to Washington County or statewide.

In four other cases, state judges have ruled Florida?s ban on same-sex marriage unconstitutional, but, like Hinkle?s ruling, those are also under appeal.

The association covering county clerks in the state has said that clerks could face misdemeanor charges if they grant marriage licenses before the appeals are settled, but a federal judge?s ruling against the ban would carry force of law unless it is reversed by a higher court, so it is questionable whether Bondi?s office or another enforcement agency would dare to press charges.

Greenberg Traurig, the law firm advising the Florida Association of County Clerks and Comptrollers, supports freedom to marry, but warns that prosecutors could view the federal court?s ruling as only applying to Washington County, and the state?s ban on same-sex marriage actually carries criminal penalties for clerks granting marriage licenses to same-sex couples. Clerks violating the ban could be sentenced to a year in jail.

The case Bondi sought an extension on, Brenner v. Scott, will next be heard by the 11th Circuit Court of Appeals, but the court has yet to set a timeline for the case. The fact that they refused to extend Hinkle?s stay may indicate that Bondi?s appeal is unlikely to win.

Thus far, only one appellate circuit, the Sixth in Cincinnati, has ruled that states have the right to bar same-sex couples from marrying. The Supreme Court refused to take up appeals on a number of other cases a few months ago, before the Sixth returned their ruling. At that point, there was no conflict between appellate circuits necessitating the Supreme Court?s intervention.

After the Sixth Circuit Court of Appeals handed down their ruling, believed by some to have been written for the sole purpose of forcing the high court?s hand, attorneys in the three cases decided by the appellate court filed appeals to the Supreme Court.