Friday, December 26, 2014

Same Sex Marriage Legal Battle Continues in Florida

Down here in Tampa visiting the folks over Christmas and eyewitness to a debate over the legality of same sex marriage.  Let me lay the background.  On August 21, 2014, Judge Robert Hinkle of the Northern District of Florida handed down a decision finding that Florida's ban on same sex marriage was a violation of the United States Constitution. 

Judge Robert Hinkle,
Northern District of Florida
In lawyer speak, the case heard by Judge Hinkle was a facial challenge to the constitutionality of the law, not an "as applied" challenge.  The latter is a constitutional challenge in which the plaintiffs claim that when the law is applied to their particular facts, the law is unconstitutional. But with another set of facts, the law could be applied constitutionally and, therefore, the law is not struck down as unconstitutional across the board.   A facial challenge on the other hand does not depend on the particular facts presented by the plaintiffs, but is a wholesale finding that a law is unconstitutional.  On the facial challenge, Judge Hinkle found that Florida's same sex marriage ban was unconstitutional.

Judge Hinkle stayed his opinion until January 5th to allow the State of Florida to pursue an appeal.  While it has not been heard by the 11th Circuit Court of Appeals, that Court refused to extend the stay beyond the January 5th date.  Meanwhile, the United States Supreme Court, through Justice Thomas, denied the request by the Florida Attorney General for an extension of the stay to prevent the state from recognizing the marriages of eight gay and lesbian couples.

Confusion now reigns in Florida over the effect of Judge Hinkle's decision.  Or pretend confusion, I would say.   Opponents of same sex marriage, say the decision only applies to the litigants involved in the case or, at the most, Washington County, where the lawsuit originated.  Proponents of same sex marriage say that the decision applies all throughout Florida   Lawyers for Washington County have filed an  "emergency motion" asking Judge Hinkle to clarify his decision.

But Washington County and the State of Florida found an ally for the insipid conclusion that Judge Hinkle's decision only has limited effect, a memo from the well-known Florida law firm Greenberg Traurig.  That legal advice is summed up in the Florida Court Clerks & Comptroller's Association statement:
“The Florida Court Clerks & Comptrollers’ opinion regarding the legality of issuing same-gender marriage licenses in the State of Florida, as previously stated by our general counsel, remains unchanged. Numerous cases support the holding that the denial of the state’s motion to stay by the U.S. Supreme Court last Friday was not a decision on the issue of same-gender marriage.

“Our general counsel has advised us that established case law makes it clear that the order of a trial court, including the Federal District Court in this case, is not binding on any other court. Further, it is the understanding of the Florida Court Clerks & Comptrollers that the only courts that can bring judicial clarity to this question through a binding, statewide decision are the U.S. Supreme Court, the Florida Supreme Court or a Florida District Court of Appeals. 
“Absent a ruling from one of those three bodies, our opinion, as previously presented by our general counsel, will not change.

“The Clerks of the Court remain committed to their duties as constitutional officers. And, to further gain clarity, our general counsel has recommended that the Washington County Clerk consider filing an emergency motion with the Federal District Court seeking clarification as to who the court’s injunction was intended to apply.” 

Greenberg Traurig later reiterated its position:
“The denial of the stay by the U.S. Supreme Court does not change our advice to the Florida Association of Court Clerks & Comptrollers that Judge Hinkle’s ruling only applies to the Washington County clerk,” Hilarie Bass, Greenberg Traurig’s Miami-based co-president, said in a statement. “The denial of a stay is not a ruling on the merits of the marriage-equality issue.”

Read more here:
The law firm is completely right that an order of the Northern District of Florida is persuasive precedent, but is not legally binding statewide or on other state and federal courts.   However, the law firm is completely wrong on the nonsense that the order only applies to Washington County.  As any first year law student will tell you the decision is binding on all counties that make up the Northern District of Florida, which includes Washington and 22 other northern Florida counties.  The denials of stays by higher courts does not jurisdictionally increase the legally binding effect of Judge Hinkle's decision.

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