Florida Asks Who Can Issue Gay-Marriage Licenses
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MIAMI (CBSMiami/AP) - Just days before Florida's ban on gay marriage is scheduled to be lifted, the state's top legal officer wants a federal judge to clarify whether clerks in all counties can issue marriage licenses to gay couples.
Attorney General Pam Bondi filed a legal response to U.S. District Judge Robert Hinkle late Monday. Hinkle previously ruled that Florida's same-sex marriage ban is unconstitutional. He stayed his ruling, but the stay is scheduled to expire Jan. 5.
The association that represents county clerks said the ruling only applies in Washington County, the Panhandle county where the legal challenge originated. Most county clerks around the state say they do not plan to begin issuing licenses on Jan. 6.
Gay-rights groups dispute that interpretation and say the ruling applies to all 67 clerks.
Hinkle last week ordered the state to "explicitly" state whether the proposed injunction applies to all the clerks.
But Bondi's filing doesn't offer a clear opinion on who is right. Instead, it says if Hinkle intends for the ruling to apply more widely, he should "provide appropriate clarification."
"This court is best situated to determine the reach of its own order," states the filing made by Allen Winsor, the state's solicitor general, on behalf of Bondi.
The legal filing does argue that clerks are "independent" officials under Florida's constitution and that Hinkle's initial ruling took aim at other statewide officials under Gov. Rick Scott who are not connected to clerks.
Voters in 2008 approved Florida's ban on same-sex marriages. But like many other judges and appellate courts, Hinkle ruled the ban violates the U.S. Constitution's guarantee of equal protection. The state has appealed that ruling.
But while the appeal is underway, Bondi tried to persuade a federal appeals court in Atlanta to keep Hinkle's ruling on hold and keep the ban in place. Bondi's office argued at the time that there was "widespread confusion" on how to carry out Hinkle's order. The appeals court rejected the request, so Bondi went to U.S. Supreme Court Justice Clarence Thomas, who oversees emergency appeals fromFlorida, Alabama and Georgia.
The entire U.S. Supreme Court wound up considering the petition but in a one-paragraph order issued earlier this month the court stated that only Thomas and Justice Antonin Scalia would have kept the stay in place.
Howard Simon, executive director of the American Civil Liberties Union in Florida, said in an email that the "confusion" created over Hinkle's ruling was because the way Bondi and others interpreted it.
"No public official should then be enforcing an unconstitutional law," Simon said.
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Meanwhile, for people like Jeff and Todd Delmay, who are plaintiffs in a different suit, are waiting to see what's next. "This isn't just a pie in the sky thing," said Delmay. "This is in many ways a very mundane thing. We just want to get married," he laughed.
The two have a 4-year-old son and they hope to one day become a legally recognized family. "I think definitely we're frustrated," said Delmay. "Every time you think, 'gosh, we're almost here,' something comes up that you think it could throw it into turmoil again."
But the Delmays said they're hopeful. "The bottom line is marriage equality is coming to Florida and if it doesn't come on the 6th, it's coming soon."
Meanwhile, the Greater Fort Lauderdale Visitor and Convention Bureau is also waiting for a decision. It filmed an advertisement and has it ready to go out, pushing the area for same-sex beach weddings. "That's when the whole campaign kicks off," explained Virginia Sheridan, spokesperson for the Greater Fort Lauderdale Visitor and Convention Bureau. "To have weddings, honeymoons, to promote just the wonderful opportunity to have a wonderful welcoming relationship happen here, take place here and be officiated here."
Once the law allows it, organizers plan to hold a mass wedding with 100 gay and straight couples who are ready to hold hands and walk down the sandy aisle. "It's going to be on Fort Lauderdale Beach," she said. "It's going to be a sunrise ceremony. There's going to be an officiant, so it will be a marriage that is done with respect, honoring everyone."
In a similar case, a Miami-Dade judge will review her case next Monday. In that case, the judge ruled Florida's ban on same sex marriage was unconstitutional, but put a stay on her order to allow an appeal. Monday, she's expected to consider lifting the stay or keeping it in place.
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