Gay-Marriage Confusion in FL Put to High Court

(CN) - With Florida's ban against same-sex marriage set to unravel in January, the Sunshine State asked the U.S. Supreme Court to keep the ban alive a bit longer.

In a petition to Justice Clarence Thomas filed Monday, Attorney General Pam Bondi said that allowing a federal judge's injunction of the state's gay-marriage ban to take effect on Jan. 6, 2015, would fuel "statewide confusion."

U.S. District Judge Robert Hinkle of Northern Florida had enjoined the state from enforcing the gay-marriage ban in August, but stayed his order pending appeal from the injunction. Both he and the 11th Circuit refused to prolong the stay beyond Jan. 5.

Since the U.S. Supreme Court is already considering whether to review appeals from the 6th Circuit, which upheld gay-marriage bans in four other states, Bondi's petition Monday says the Florida stay should be extended pending that outcome.

"The Eleventh Circuit's recent decision denying a longer stay has created statewide confusion, with news reports now suggesting that the end of the stay will lead to statewide issuance of same-sex marriage licenses, even though only one of Florida's 67 clerks of court is a party below," the petition states. "Some clerks who are not parties to this litigation have announced that, absent a stay, they will begin issuing licenses on January 6."

The 5th Circuit recently stayed same-sex marriage challenges to prevent the "inevitable disruption that would arise from a lack of continuity and stability in this important area of law," according to Bondi's petition, which Solicitor General Allen Winsor wrote.

Although the U.S. Supreme Court previously refused to hear same-sex marriage cases from other circuits, appeals are still pending in several circuits and may warrant Supreme Court review, according to the petition.

"The constitutional issue is a serious one, and it deserves appellate review before the injunctions should become effective," Winsor wrote.

An order from Judge Hinkle, requiring the Clerk of Court in Washington County, Fla., to issue a marriage license to two of the plaintiffs in the gay-marriage lawsuit, promoted most of the confusion at issue.

Greenberg Traurig, the law firm that represents the Florida Association of Court Clerks, cautioned in a July memo to the clerks' association that Hinkle's injunction applies only to the clerk in Washington County. The firm renewed its original recommendation on Monday, noting that all other Florida clerks could face penalties for issuing marriage licenses to same-sex couples once the stay expires.

"We realize that it may seem to many that Judge Hinkle's federal district court ruling that Florida's same-sex marriage ban is unconstitutional and violates fundamental rights would permit all Florida clerks of court to lawfully issue marriage licenses to same-sex couples," the memo states. "However ... our review of the law indicates that an order and injunction issued at the federal trial level is not binding on any person, including a clerk of court, who is not a named party in the action. Nor does such a ruling bind any other court."

Florida's other 66 clerks of court, who are not parties to the lawsuit, "remain exposed to Florida's apparently unique criminalization of the issuance of marriage licenses to same-sex couples" while the appeal is pending, according to Greenberg Traurig's memo.

Daniel Tilley, an attorney with the ACLU of Florida, blamed the stubbornness of state officials for the confusion.

"It is unsurprising, given how hard [Gov. Rick] Scott, his appointees, and Attorney General Bondi have fought to keep loving and committed couples from getting married and having their marriages recognized in Florida, that they would keep up this dead-end fight," Tilley said in a statement. "But with just weeks until the ruling is scheduled to go into effect, it is disappointing.

"Florida families have waited long enough for the end of a ban that a federal court has declared unconstitutional. Since October, the Supreme Court has refused all requests to stay rulings striking down the exclusion of same-sex couples from marriage in other states. We are hopeful they will do the same here so that loving couples and their children can get the protections for which they have waited so long."

Broward County Circuit Judge Dale Cohen on Wednesday granted the first divorce for a gay couple in Florida to two women who entered a civil union in Vermont in 2002. Cohen previously declared the state's ban on same-sex marriage unconstitutional. There was no immediate reaction from the attorney general's office.

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