Frequently Asked Questions on Florida’s Marriage Amendment By Attorney John Stemberger

  1. Q- The 2008 FL Marriage Amendment was passed and became law to prevent judges from overturning the definition of marriage.How can they now do this? A- Judges are “ruling” or rendering opinion that the Florida Marriage Amendment is somehow now unconstitutional under the federal constitution. Only the US Constitution can trump and overrule a state constitutional provision.  This is why ultimately a Federal Marriage Amendment is needed.  Unfortunately, it is unlikely this will happen anytime in the near future given the make-up of the U.S. Congress and the general public.
  1. Q- What happened with the Federal Court decision recently that changed everything pointing to this January 6th date for issuing same sex marriage (SSM) licenses? A- The federal court case by Judge Robert Hinkle, Northern District of Florida in Tallahassee was appealed to the 11th Circuit Court of Appeals in Atlanta.  The 11th Circuit affirmed Judge Hinkle’s ruling finding the marriage amendment suddenly unconstitutional under the US Constitution.  The quick decision by this court ended the stay and Hinkle ruled that some* SSM licenses can be issued after January 5, 2015.
  1. Q- How can a court in Atlanta, Georgia affect us here in Florida? A- The 11th Circuit Court of Appeals is the location of the federal appeals court which has jurisdiction for cases filed in states within the 11th Circuit namely, Florida, Georgia and Alabama. The court over the 11th Circuit in Atlanta is the Supreme Court of the United States (SCOTUS).
  1. Q- What is the legal argument being used by homosexual activists & judges to strike down state marriage amendments? A- We believe it is a wrong legal position, but they argue laws which define marriage and preclude same sex unions violate the Equal Protection Clause of the US Constitution which should overrule a state constitutional amendment.
  1. Q- What’s wrong with this argument? A- The correct legal and constitutional position is that marriage is a state’s rights issue and each state should have the ability to define marriage as a matter of public policy in that state.  The Equal Protection arguments are completely without any merit as courts are simply creating rights out of thin air, twisting the history and meaning of the constitution like Play Dough.  This is classic textbook judicial activism where judges are seeking to be social change agents and legislating from the bench instead of objectively interpreting the law.
  1. Q- Will the Supreme Court of the United States rule on this issue and is there any chance this federal case in Tallahassee could be reversed? A- Yes.Currently there are two federal appeals courts which are in conflict with each other which triggers an automatic appeal to the SCOTUS.  The Court however is still not obligated to issue a ruling.  We should know sometime in 2015 if the SCOTUS will take up and decide the conflicting jurisdictions.  If the SCOTUS did uphold state’s rights then this would immediately reinvigorate the enforceability of Florida’s Marriage Amendment.
  1. Q- Where is the US Supreme Court on marriage? A- Of its nine members, most court observers believe there is a 4-4 spilt between state’s rights advocates and those who want to create a new right to SSM. The swing vote is Kennedy.
  1. Q- What does Justice Kennedy believe? A- In the last major SCOTUS marriage case of Windsor vs US, Kennedy used very hostile and frankly offensive language to describe people who have a traditional or natural view of marriage.  But he also has taken a strong state’s rights position in other recent cases so it is possible the SCOTUS could now have a majority of justices voting for state’s rights.  It is also possible, but now seems less likely, that Kennedy could find a new right to marry creating a “Roe vs Wade-like” marriage decision controlling the issue for decades into the future.
  1. Q- Will every Florida Clerk of the Court in all 67 counties start issuing marriage licenses come January 6, 2015? A- No.  Apparently only the Clerk in Washington County might* be able to issue SSM licenses.  The State Clerk’s Association issued a legal opinion stating that if other County Clerks (other than Washington County) issued SSM licenses they could be subject to arrest, fines and imprisonment and advised them not to.  The ACLU disagrees and argues that no one is going to arrest a Clerk of Court.  Some clerks may still try and defy the law and run the risk.

* NOTE:  Recently, Florida Attorney General Pam Bondi appealed to Justice Clarence Thomas on the SCOTUS for an extension of the stay to halt the issuing of marriage licenses until an appeal to the Supreme Court can be made.  If the SCOTUS grants that stay, then even Washington County, FL will not be able to issue same sex marriage licenses on January 6, 2015.  Hopefully the high court will grant this stay, otherwise there will be a confused legal patchwork in Florida with new “same-sex” marriages, legitimate natural marriages and if the SCOTUS rules for state’s rights, same sex couples in the future who will want to, but be unable to obtain licenses anymore because of Florida’s Marriage Amendment being reaffirmed as constitutional.

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