Marriage begins in Florida

by Anthony Glassman

Miami--While legal same-sex marriages began officially throughout most of the state on January 6, a judge in Miami-Dade County decided not to wait, and began marrying couples on January 5.

However, thirteen counties will be getting out of the marriage business entirely due to ?religious objections? over same-sex marriage. Since they cannot legally discriminate, they just will not marry anyone at all. However, they will still be required to issue marriage licenses, they simply will not perform the weddings.

The back-and-forth on marriage in the state came to as close an end as it?s likely to get any time soon on January 1, when Judge Robert L. Hinkle responded to Attorney General Pam Bondi?s request for clarification on whether his ruling in favor of same-sex marriage applied only to Washington County, the one named in the case he decided, or was statewide. Hinkle is a federal circuit court judge.

Hinkle issued a stay in his August ruling to allow appeals to go through. Bondi sought a permanent injunction, but was rebuffed by both the federal appellate court and the Supreme Court.

Lora Bell, the Washington County Clerk of Court, argued that the ruling only required her to marry the couple that filed the suit, but Hinkle rejected that argument.

?A preliminary injunction is in place and has been for more than four months. It holds unconstitutional the Florida ban on same-sex marriage,? Hinkle wrote. ?Now the Clerk has filed an emergency motion to clarify the preliminary injunction. She asks whether the injunction requires her to issue marriage licenses to all qualified same-sex applicants or only to the two unmarried plaintiffs.?

?The founders of this republic adopted a Constitution and a system for its enforcement. When there are disagreement about what the Constitution requires, those who are affected may seek a definitive ruling in court. These plaintiffs did that in this case,? he continued. ?The result was an explicit ruling that Florida?s same-sex marriage ban is unconstitutional.?

?The United States Supreme Court and federal courts of appeals had stayed similar rulings in other cases. I stayed the ruling in this case while those stays were in effect and for 91 more days - long enough to allow the defendants to seek a further stay in the United States Court of Appeals for the Eleventh Circuit and, if unsuccessful there, in the United States Supreme Court,? he noted. ?The defendants did that. They lost. The United States Supreme Court allowed the ruling in this case to take effect.?

?The preliminary injunction now in effect? 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,? he concluded.

Bondi?s office issued a statement regarding Hinkle?s clarification.

?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,? she said.

Ultimately, marriage in Florida and other states currently with cases making their way through the appeals process will be in the hands of the Supreme Court. At the beginning of the court?s 2014-2015 session, they declined to take up appeals of same-sex marriage cases before them. However, at that point, all the appellate courts had ruled in favor of same-sex marriage, meaning there was no disagreement between the circuits to be decided.

The Sixth Circuit Court of Appeals in Cincinnati, however, ruled against same-sex marriage in Ohio, Michigan, Kentucky and Tennessee on November 6, creating the circuit split that court observers believe is necessary before the justices take up the issue and, perhaps, settle it once and for all.

Some believe that the Sixth Circuit ruling, vilified in the dissenting opinion written by Senior Judge Martha Craig Daughtrey, was crafted solely to create that circuit split. Daughtrey, however, would not let the ruling stand unsullied.

?The author of the majority opinion has drafted what would make and engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy,? she begins. ?But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state?s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise - that the question before us is ?who should decide?? - and leads us through a largely irrelevant discourse on democracy and federalism.?

?In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it,? she continues. ?Because I reject the majority?s resolution of these questions based on its invocation of vox populi and its reverence for ?proceeding with caution? (otherwise known as the ?wait and see? approach), I dissent.?

The Supreme Court will meet on January 9 to discuss whether they will take up the same-sex marriage appeals.