Native Floridians, as well as followers of the awesome and devastating @_FloridaMan Twitter feed, know that the Sunshine State does things its own way—with its own brand of crazy. It’s certainly the case regarding same-sex marriage, as desperate conservatives scramble for tactics to delay the inevitable.
Well, the inevitable starts now. As of this afternoon, gay Floridians can get married in Dade County. And at midnight, they can get married across the state, even despite a few Floridians in positions of power—if very limited power—who tried to stop them the old fashioned way.
The road had been a tangled one. Two sets of Florida couples challenged Florida’s statutory and constitutional bans on same-sex marriage. They prevailed last August, obtaining—follow me here—an injunction prohibiting the enforcement of those provisions. In other words, Florida clerks were no longer allowed to turn gay couples away.
The order was stayed, pending various appeals. Higher courts, including the Supreme Court had refused to intercede, and the stay was to expire tonight.
That’s when marriage equality opponents got busy. Various clerks said that they personally would not issue gay marriage licenses. Twelve county courthouses in North Florida (or as we Floridians call it, Southern Alabama) have decided to stop all courthouse weddings, rather than have to include same-sex ceremonies among them. (You can still get your license at the court—just not actually get married there.) Spin control began, Florida-style: the opinion only covers some counties, some people, some times.
And get this: a private law firm representing Florida’s clerks association actually said that clerks issuing marriage licenses to same-sex couples until the U.S. or Florida Supreme Courts ruled on the issue could actually be prosecuted. Even though clerks in Virginia, Colorado, Utah, and other states have been doing exactly that. (The law firm has since retracted that statement.)
Florida’s attorney general, Pam Bondi, filed one last-ditch appeal. The injunction, she argued, only applies to these four plaintiffs—not to anyone else. That’s a novel argument, really—it’s like saying that Brown v. Board of Education only applies to the Brown family. But, on the face of it, the court’s order did only apply to the plaintiffs in the case.
So, in an unusual order (PDF) issued on New Years Day, District Judge Robert Hinkle clarified the issue. No, the injunction doesn’t cover the estimated 48,500 same-sex couples living in Florida today. “But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”
This seems so obviously correct that it’s a wonder the Florida attorney general challenged it in the first place. Obviously, if something is unconstitutional, it’s not okay to just carve out two people—and still act unconstitutionally toward everyone else. Perhaps that’s why Bondi’s statement said “we are glad the Court has provided additional guidance.”
But Bondi couldn’t quite leave it alone, either, adding, “My office will not stand in the way as clerks of court determine how to proceed.”
That’s an unusual statement from a law enforcement officer. The highest federal court to decide this case has said that the Constitution requires clerks to issue marriage licenses to all comers. What does Bondi mean that clerks now should “determine how to proceed”? Can they determine that individual citizens should not have access to rights provided by the Constitution?
Indeed, one lawyer told the Miami Herald that “She’s saying, look, ‘Judge Hinkle did not tell the clerks that they are required to issue marriage licenses to same-sex couples, however, he told them that they may issue marriage licenses’ and she’s not going to stand in their way of whatever independent decisions they may make.”
What?
Judge Hinkle said “the Constitution requires the Clerk to issue such licenses.” I don’t see any mays or maybes in there. But Bondi’s ambivalent statement gives the impression that the order left room for interpretation.
In fact, as the marriage advocacy group American Foundation for Equal Rights has pointed out, the only interpretation still ahead is that of higher courts. The Eleventh Circuit may take up the case on appeal. And on Friday, the Supreme Court will be meeting to decide whether to address the recent circuit split on the issue, caused by the Sixth Circuit’s encyclopedic opinion opposing same-sex marriage. Judge Hinkle’s is not the final word.
Indeed, history may give the last, somewhat pathetic word to former Florida governor and future probable-presidential candidate Jeb Bush. Said Jeb to reporters, after completing a round of golf in Coral Gables, “The state decided. The people of the state decided. But it’s been overturned by the courts, I guess.”
Actually, the guessing game is over; the weddings have begun, as have weird attempts to circumvent our constitutional democracy. That’s Florida, I guess.
