Barring unforeseen circumstances, the state of Florida will begin issuing marriages to same-sex couples on January 6th, although the process that leads to those licenses being issued in some counties may prove to be unusually complicated.
Last August, Judge Robert Hinkle, a Clinton appointee to a federal trial court in Florida held that denying equal marriage rights to gay couples violates their right to equal protection of the law under the Constitution. Hinkle stayed that order for several months, however, to give the state time to appeal his decision to higher courts. Both a federal appeals court and the United States Supreme Court, however, chose not to issue a further stay of the order. Hinkle’s own stay is set to expire at the end of the day on January 5th, meaning that Tuesday, January 6th will be first business day when his order is in effect.
Nevertheless, many of Florida’s county clerks indicated that they would not begin issuing licenses next Tuesday out of concern that they could find themselves in legal hot water. A law firm that represents the Florida Association of Court Clerks & Comptrollers advised the state’s clerks that Hinkle’s ruling only applies in one county, and it suggested that clerks could even be subject to criminal prosecution if they issued licenses elsewhere. In light of this concern, as well as a concern that the order may only apply to the plaintiffs who actually brought this particular lawsuit and not to gay couples generally, one clerk asked Hinkle to clarify his order.
Hinkle offered this clarification on Thursday. In an apparent attempt to allay concerns that clerks might face prosecution if they issue marriage licenses to same-sex couples, Judge Hinkle explains that “[t]here should be no debate . . . on the question of whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.” Moreover, though Hinkle stopped short of ordering every clerk in the state to begin issuing licenses as soon as the stay on his order expires, he offered a warning for clerks who resist equality:
[A] clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.
If a clerk denies a license to a particular couple, in other words, that couple can seek a new order from Hinkle requiring the clerk to back down. And should that couple obtain such an order, they can force the clerk (or, more likely, the government that employs the clerk) to pay their legal bills. “The preliminary injunction now in effect thus does not require the Clerk to issue liecenses to other applicants,” Hinkle explains, “[b]ut as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”