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Florida Clerks Must Issue Gay Couples Marriage Licenses, Judge Rules

By Steve Rothaus, Miami Herald (TNS)

MIAMI — All Florida county clerks are bound by the U.S. Constitution not to enforce Florida’s gay marriage ban and that any couple seeking a license starting Tuesday should receive one, U.S. District Judge Robert L. Hinkle ruled.

“The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants,” Hinkle wrote in an order released Thursday afternoon. “But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”

“We are thankful that Judge Hinkle agreed with us that the Constitution does not tolerate discrimination and that, beginning Tuesday, Jan. 6, all clerks in Florida have an obligation to issue marriage licenses to couples requesting them,” said Howard Simon, executive director of the American Civil Liberties Union of Florida.

Simon said Hinkle’s “injunction has statewide impact because he found the law unconstitutional and therefore as we have been saying, no public official should be acting in accordance with an unconstitutional provision.”

Florida Attorney General Pam Bondi did not immediately respond to Hinkle’s order on the scope of his original injunction.

Broward County Clerk Howard Forman said his office staff will meet first thing Friday morning “to implement the order.”

“It was pretty plain,” Forman said about Hinkle’s ruling.

The ACLU of Florida represents eight same-sex couples legally married elsewhere and LGBT-rights group SAVE in a federal lawsuit seeking to end Florida’s 2008 constitutional ban against same-sex marriage.

On Aug. 21, Hinkle declared Florida’s gay marriage ban unconstitutional, as have circuit judges in Monroe, Miami-Dade, Broward and Palm Beach counties. Bondi filed appeals in the Monroe, Miami-Dade and federal cases and the judges in those cases each stayed their decisions.

Hinkle’s stay in the federal lawsuit expires Monday. Bondi appealed to both the U.S. 11th Circuit Court of Appeals and the U.S. Supreme Court for extensions. Both courts said no.

With the deadline approaching, many county clerks said they would not follow Hinkle’s order, based on advice from law firm Greenberg Traurig, which represents the Florida clerks association. Greenberg Traurig lawyers in Tallahassee have said clerks who issue licenses to same-sex couples before rulings by the U.S. or Florida supreme courts face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000.”

Hinkle said: “History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds.”

The judge also warned clerks throughout Florida that if they don’t follow his order, they could be sued:

“There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And 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.”

Miami attorney Richard Milstein, a partner at Akerman and a plaintiff in the federal lawsuit with husband Eric Hankin, said that now “all the people in Florida can get married whether they are heterosexual, gay or lesbian, to the people they love.”

Milstein and Hankin married March 12, 2010, in Iowa.

Photo: sigmaration via Flickr

Lawyers, Activists: Florida Law Firm Wrong In Advising Clerks Not To Issue Same-Sex Marriage Licenses

By Steve Rothaus, Miami Herald (TNS)

MIAMI – Leading LGBT activists and attorneys on Monday blasted a top Miami-based law firm for “an exaggerated warning” to county clerks that they could be fined or prosecuted for issuing marriage licenses Jan. 6 to same-sex couples.

“A law firm memo does not override a federal judge’s order and the actions of the 11th Circuit and the U.S. Supreme Court,” said Nadine Smith, executive director of Equality Florida, a major LGBT-rights lobbying group. “They’re actually exaggerating the risk on one hand and ignoring the extraordinary risk clerks will face in lawsuits and damages for violating the constitutional rights of every couple they turn away.”

Same-sex marriage is set to begin Jan. 6 in Florida, after the U.S. Supreme Court on Friday evening denied Florida Attorney General Pam Bondi’s request to Justice Clarence Thomas that he extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples.

On Aug. 21, U.S. District Court Judge Robert L. Hinkle of Tallahassee overturned Florida’s 2008 constitutional gay-marriage ban and stayed his ruling through Jan. 5, to give Bondi time to take the case to the U.S. Circuit Court of Appeals in Atlanta. The appeal still hasn’t been heard by that court, but on Dec. 3 three 11th Circuit judges told Bondi it would not extend Hinkle’s stay.

After the Supreme Court announcement Friday night, Bondi conceded in a statement that “the Supreme Court has now spoken, and the stay will end on Jan. 5.”

The hitch: Top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks, has advised them that only the clerk in Washington County, in rural North Florida — named in Florida’s federal gay-marriage lawsuit — would be bound by Hinkle’s ruling. All other Florida clerks who are not parties in the lawsuit could face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000” if they went ahead and married same-sex couples, according to Greenberg Traurig.

At least one clerk, Linda Doggett of Lee County, said her office would abide by the Greenberg Traurig recommendation and not issue marriage licenses to same-sex couples on Jan. 6.

“Per an opinion recently issued by the Florida Court Clerks & Comptrollers legal counsel, the Florida constitutional ban still applies in most counties including Lee County making the issuance of same-sex marriage licenses illegal for our office. The recent decision only affects the Clerk’s office named as a party in the law suit. Until a binding order is issued by a court of proper jurisdiction, the law is not changed,” Doggett wrote in news release Monday.

Shannon Minter, legal director for the National Center for Lesbian Rights, said Monday that Doggett is wrong, that Hinkle’s order “is worded not just to the named defendants but to anyone acting in concert or in participation with them. That applies to all state and local officials who have any role in enforcing Florida’s marriage laws.”

Minter says the Greenberg Traurig recommendation “doesn’t make sense.”

“The memo to the clerks is incorrect,” Minter said. “It’s a classic case of missing the forest from the trees. In light of the overwhelming weight of national authority, the federal district court’s ruling by Judge Hinkle and the 11th Circuit/Supreme Court denials of a stay, it is clear that clerks across the state and all state and local officials are legally bound to no longer enforce the discriminatory marriage ban once the stay expires at the end of Jan. 5.”

Minter co-represents Equality Florida Institute and six same-sex couples who in January 2014 sued Miami-Dade County Clerk Harvey Ruvin to issue them marriage licenses. He says the Greenberg Traurig memo has “sowed needless confusion.”

“The Greenberg memo focus on the entirely implausible threat of criminal prosecution. What it misses is the far greater likelihood, if not certainty, that clerks who fail to comply will be sued. Then they will be at risk for having to pay damages and attorney fees,” Minter said. “Those will come at taxpayer expense.”

Hilarie Bass, the firm’s Miami-based co-president, said in a statement Friday that “Greenberg Traurig is not advising the clerks as to the constitutionality of the Florida ban on same-sex marriage.”

Bass told the Miami Herald Friday that Greenberg Traurig actually supports same-sex couples’ right to marry and on Monday would file a friend-of-the-court brief in Florida’s Third District Court of Appeal “in support of two circuit court orders declaring unconstitutional Florida’s ban on same-sex marriage,” Bass said.

The friend-of-the-court brief will be filed on behalf of gay adoptive father Martin Gill, Bass said.

Bass and Greenberg Traurig, along with the ACLU of Florida, helped represent Gill in his quest to overturn a 1977 Florida law that prohibited gays and lesbians from adopting. Gill adopted his foster sons in 2010.

Photo: “orangejack” via Flickr

Florida Judge Overturns State’s Ban On Gay Marriage

By Steve Rothaus, The Miami Herald

Monroe County Circuit Judge Luis Garcia overturned Florida’s 2008 constitutional gay-marriage ban on Thursday, and ordered that two Key West bartenders be allowed to wed but not before Tuesday.

“The court is aware that the majority of voters oppose same-sex marriage, but it is our country’s proud history to protect the rights of the individual, the rights of the unpopular, and rights of the powerless, even at the cost of offending the majority,” Garcia wrote in his opinion, released about 1 p.m. Thursday.

Aaron Huntsman and William Lee Jones, who met at a gay pride celebration and have been a couple for 11 years, sued Monroe County Clerk Amy Heavilin in April for a marriage license. Their case mirrors a similar suit in Miami-Dade County, in which six same-sex couples and LGBT advocacy group Equality Florida Institute sued County Clerk Harvey Ruvin for the right to marry.

In both cases, Florida Assistant Attorney General Adam Tanenbaum argued that Garcia and Miami-Dade Circuit Judge Sarah Zabel should not dismiss Florida’s constitutional gay marriage ban, which passed in 2008 with the support of 62 percent of voters.

“It remains for this court simply to respect the policy decision made by voters,” Tanenbaum told Garcia at a hearing for summary judgment on July 7 in Plantation Key.

Zabel has yet to rule on whether to allow the Miami-Dade plaintiffs to wed or go to trial in their suit against Ruvin. The six couples are Catherina Pareto and Karla Arguello of Coconut Grove; Dr. Juan Carlos Rodriguez and David Price of Davie; Vanessa and Melanie Alenier of Hollywood; Todd and Jeff Delmay of Hollywood; Summer Greene and Pamela Faerber of Plantation; and Don Price Johnston and Jorge Isaias Diaz of Miami.

The gay-marriage battle is being waged across the nation. A federal judge last week ruled Kentucky’s same-sex marriage ban unconstitutional. According to the group Freedom to Marry, LGBT advocates have won 23 times in federal, state, and appellate courts since June 2013, when the U.S. Supreme Court threw out a key portion of the 1996 Defense of Marriage Act.

Last year, Supreme Court justices determined the federal government must recognize same-sex marriages, but did not address whether state marriage bans are legal.

Conservative activists in Florida, who campaigned six years ago for the constitutional gay marriage ban, have fought to keep it in place.

The groups were not allowed to join the Miami-Dade and Monroe cases as defendants. Instead, Garcia and Zabel allowed them to speak as friends of the court.

“The plaintiffs’ argument with regard to same-sex marriage has no boundaries,” Mathew Staver, founder of the conservative Liberty Counsel, told Garcia. “The plaintiffs’ argument is not to just redefine marriage to include two people of the same sex, the implications of that is if you include two people of the same sex, then why can’t you have a person of the opposite sex, that also brings in a same-sex partner into the marriage.”

Monroe plaintiffs’ co-counsel Elena Vigil-Farinas told Garcia that Staver’s legal argument — which included a graphic written description of heterosexual and homosexual sex acts — “embarrassed” her.

“I’m embarrassed to have a member of the bar write something like this as an excuse to support the bigotry of the voters of Florida,” Vigil-Farinas said. “Because in his mind, this court should allow mob rule. If the majority — the one that has the most money, the one that has the most position — don’t like a certain segment of society like our friends over here, they get to rule. And you don’t get to even evaluate whether it’s even constitutional.”

Vigil-Farinas, who argued the case with law partner Bernadette Restivo, asked the judge, “What would this state be like if we allowed mob rule?”

“Today, it’s against Aaron and Lee. Tomorrow it could be against me. I wasn’t born here,” added Vigil-Farinas, who is from Cuba.

After the hearing, Staver seemed outraged that Tanenbaum spoke for about five minutes at each of the South Florida hearings, and never actually argued in favor of the gay marriage ban.

Staver said Tanenbaum’s boss, Florida Attorney General Pam Bondi, “is giving only window dressing to the Florida Marriage Amendment.”

If Bondi “does not want to present a vigorous defense, she owes it to the voters of Florida to step down and allow someone else to represent the interests of the State,” Staver said in a news release.

Susan Melkisethian via Flickr

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Eight Gay Couples Sue Florida To Recognize Their Legal Marriages

By Steve Rothaus, The Miami Herald

MIAMI — Eight same-sex Florida couples who legally married elsewhere in the United States have gone to federal court to demand the Sunshine State recognize their unions.

The suit, filed in Tallahassee late Wednesday by the ACLU, the ACLU of Florida and the Podhurst Orseck law firm of Miami, challenges “Florida’s refusal to recognize” the marriages of eight same-sex couples. Those 16 defendants are joined by SAVE, South Florida’s leading LGBT-rights group.

Florida Gov. Rick Scott, Attorney General Pam Bondi, Surgeon General and Health Secretary John Armstrong and Department of Management Services Secretary Craig Nichols are named as defendants. The plaintiffs held a news conference Thursday morning to announce details of the lawsuit.

“Our historic victory in last year’s Supreme Court case striking down (the federal Defense of Marriage Act) means that many loving and committed Floridians have marriages that are recognized by the federal government,” said Howard Simon, executive director of the ACLU of Florida. “Sadly, Florida refuses to recognize those marriages, often at significant cost to their families. The time has come for Florida to end its discrimination against same sex couples, including those whose marriages are legally recognized elsewhere in our country and by the federal government.”

“This is the other shoe of Windsor,” said Simon, referring to the 2013 Supreme Court decision that forced the federal government to recognize married same-sex couples. In that case, Edith Windsor, the elderly widow of Thea Spyer, successfully sued the U.S. government to claim estate-tax exemption for surviving spouses.

Last June, the U.S. Supreme Court invalidated Section 3 of the 1995 federal Defense of Marriage Act, a provision that prevented the U.S. government from recognizing marriages like Windsor’s. It did not address Section 2 — the portion that allows states including Florida to not recognize legal same-sex unions. Seventeen states, including New York Iowa and California, and the District of Columbia now marry gay and lesbian couples.

“All around the country, loving couples enjoy the rights and responsibilities that come with a marriage fully recognized by their state, and it’s time Florida couples enjoyed that as well,” SAVE Executive Director Tony Lima said. “Why should couples who commit to love and care for one another lose protections for that relationship when they return to Florida?”

Florida has never granted same-sex couples the right to marry. In 2008, nearly 62 percent of voters amended the state constitution to ban gay marriage, along with recognition of legal same-sex marriages performed elsewhere and domestic partnerships.

In January, six same-sex couples and Equality Florida, the state’s largest LGBT-rights group, sued Miami-Dade County Clerk Harvey Ruvin after his office declined to issue the men and women marriage licenses. That case, assigned to Miami-Dade Circuit Judge Sarah Zabel, is pending.

The state has remained silent on the Miami-Dade lawsuit. Bondi has said that she would be willing to join the lawsuit, on behalf of the county, if asked, but she has not been asked. The state’s silence led conservative activists in Orlando and Miami to file a motion defending Florida’s marriage amendment

The plaintiffs behind the latest federal suit include a lesbian couple from Palm Beach County.

Palm Beach Gardens firefighter Sloan Grimsley and her wife, Joyce Albu, a consultant who works with parents of children with developmental disorders, have been together nine years and were married August 2011 in New York. They have several young children and worry that if Grimsley was killed on the job, Albu would not receive support normally given to spouses of first responders who die in the line of duty.

“I’m proud of the work that I do protecting my community, but the law in Florida doesn’t let me protect my own family,” Grimsley said. “We just want the peace of mind of knowing that those vows we took to care for one another aren’t dependent on where we are.”

Photo by Guillame Paumier/Flickr