Update on the Attack on Florida’s Marriage Laws
Summary of News Events and Analysis
There are several developments that have taken place just in the last several days before, during, and after the holidays regarding the attack on Florida’s marriage laws. I want to update you on this matter because there are almost daily developments that have occurred.
Tuesday, December, 23, 2015
State Attorney Jeff Ashton announced he will not prosecute Clerks of Courts who violate the law and marry same-sex couples. As a result of that announcement, Osceola County Clerk of Court Armando Ramirez announced he would start issuing same-sex marriage licenses in direct violation of the law starting at midnight, Tuesday, January 6, 2015. With assurance from the State Attorney that he would not be prosecuted, this was all that Ramirez needed to openly defy the law.
Tuesday, December 30, 2014
It was big news on this day as our own Florida Family Action announced the filing of lawsuits against Orange County Mayor Buddy Dyer, Osceola County Clerk of Court Armando Ramirez and Circuit Court Judge Robert LaBlanc. The two lawsuits were basically asking the court to require these elected officials to obey the law in Florida and not issue marriage licenses to same-sex couples or oversee same-sex marriage ceremonies.
Wednesday, December 31, 2014
The next day Liberal Democrat and Orange County Circuit Court Judge Tim Shae (who was elected and not appointed by the Governor) issued a ruling that the Orlando Clerk of Court Tiffany Moore Russell was being ordered to start issuing same-sex marriage licenses. The Orlando Sentinel reported that Moore Russell was coordinating with gay-rights activists behind the scenes and actually filed a petition, not with a random judge picked on a rotating basis, but she asked the most liberal judge in Orange County for “clarity” regarding what to do. This is in spite of the fact that lawyers with the respected law firm of Greenburg Traurig, representing the state Association of Clerks, issued a legal opinion advising that clerks should not issue samesex licenses. Apparently that clarity was not good enough for her.
Thursday, January 1, 2015
Federal Circuit Court Judge Robert Hinkle of Tallahassee (another liberal judge) issued a confusing order which indicated that his prior ruling only applied to Washington County, and then only to the two persons who were plaintiff’s in that case. In reading the slippery decision it almost appears he just let a couple of liberal law clerks do their double speak magic because of how it says opposite things. After saying it only applies to the two persons in Washington County, the ruling then goes on to encourage clerks of the court to violate the law, because if they did not, they would be sued by folks (like us) trying to enforce the law. The Associated Press along with virtually every other news agency misunderstood the decision and headlines and articles everywhere read that Hinkle “cleared the way for all 67 County Clerks to start issuing marriage licenses to same-sex couples.” No one has mentioned the clear legal fact, including the courts own ruling, that Judge Hinkle has no jurisdiction to rule anything unconstitutional in a binding way outside of the Northern District of Florida.
Friday, January 2, 2015
Circuit Court Judge Leticia Marquis issued an order dismissing one of the two lawsuits by Florida Family Action-this one against the Osceola County Clerk, based primarily on a misreading of Judge Hinkle’s ruling. It was reported on this day that following a statewide conference call, all county clerks in the state of Florida “announced” they will follow Judge Robert Hinkle’s New Year’s Day ruling and will begin issuing marriage licenses to same-sex couples starting Tuesday morning, January 6, 2015. This report may not be accurate and there may be some clerks that push back on this.
Saturday, January 3, 2015
The Miami Herald reports that down in Miami-Dade County homosexual activists have also petitioned for the stay on that state case to be lifted immediately. That hearing is scheduled for today Monday January 5, 2015. It appears the plan here is for Miami to beat the January 6th deadline so they can have a major media event by saying they were the very first to be married and “make history.”
Answering other questions:
Can anything else be done at this point?
Not much. Our lawyers with Liberty Counsel have asked the judge’s office assigned to the Orange County lawsuit for an emergency hearing, so it is possible, but unlikely that any judge at this point would have the courage to do the right thing and rule in our favor to uphold the law. The peer pressure within the bar and judicial circles is quite heavy and few judges have the backbone to do what is legally and morally right on these issues. As C.S. Lewis said, “We make men without chests, and expect from them virtue and enterprise.”
What about the United States Supreme Court?
Currently there is a conflict between at least two federal circuits. The Sixth Circuit (Michigan, Kentucky and Ohio) has affirmed natural marriage and the state’s rights to define marriage. The Fourth, Seventh, Eighth and Ninth Circuits have all found some new right to same-sex marriage that never existed before in the law. This conflict provides the basis for an automatic appeal to the US Supreme Court. (SCOTUS) The court however does not need to hear the case and may deny the appeal or just choose not to rule in a case as they have done recently. There appears to be a four to four conservative – liberal split in the SCOTUS. The swing vote is Justice Kennedy.
What does Justice Kennedy believe?
While it is not clear where Kennedy will come down on this issue, in Windsor, the last major SCOTUS marriage case, he used very hostile and frankly offensive language to describe people who have a traditional or natural view of marriage. But he also took a state’s rights position in that case, so it is possible that he could give the SCOTUS a majority vote for upholding Florida’s marriage law. A state’s rights decision would immediately reinvigorate the authority of Florida’s Marriage Amendment. On the other hand, it is also possible Kennedy could find a new right to marry under the Equal Protection Clause, which would result in a Roe vs Wade-like marriage decision, which would block any further changes in the law for decades to come.
If SCOTUS did come out with a state’s rights ruling then this would create a further confused patchwork of case law and precedent with three categories, legitimate marriages, same sex marriages which are now in question because of the new decision under the newly authoritative marriage amendment and then same sex couples who want to be married and now cannot. But this is precisely the type of confusion the left wants.
So what will end up happening this Tuesday, January 6th?
Apart from an unexpected legal miracle, it appears that county clerks in all 67 Florida counties will begin to issue same-sex marriage licenses on this date. We do know that the clerks in Santa Rosa and Okaloosa counties, meanwhile, have joined clerks in Baker, Clay, and Duval counties in discontinuing all courthouse wedding ceremonies – rather than allow “gay” couples to use that service for their weddings. In other words, the clerks will take the first step of issuing the license forms but they will not conduct courthouse ceremonies solemnizing those same-sex marriages (or any other marriages) in order to respect the rights of conscience of those clerks and their employees from having to officiate over these very controversial same-sex unions.
Final Thoughts and Perspective:
It is one thing for a governmental body to produce bad policy. But when government produces a bad policy using an illegitimate process, it just undermines the legitimacy of the government all the more-in this case the legitimacy of the courts. Out of the 35 states that have currently enacted same-sex marriages, only 11 have done it with a legitimate process of either a popular vote or a legislative enactment from duly elected officials. The other 24 states, and soon Florida, will have used an illegitimate process of courts which have overstepped their bounds with judges who have acted outside the proper scope of a judge.
Finally, Orlando Mayor Buddy Dyer and other pro-gay politicians around the state are pandering to these activists and planning mass “gay” marriage ceremonies on Tuesday. But there is a major legal problem. Florida’s marriage law requires a -three-day waiting period before the marriage license can be made final. This waiting period can be waived only if the couple provides certification of a four-hour marriage education course. Also hardship waivers can be given, but only to out-of-state applicants and not to Florida residents. Query how many homosexual couples are really going to do four hours of marital preparation and how many officials marrying them are really going to follow the law and require documentation of this in order to be married on the same day at the license is issued. This all underscores the lawlessness and disrespect for the rule of law from the President of the United States, to federal judges, to state attorneys, to local politicians. And that is frankly outrageous.
Also on Tuesday, Governor Rick Scott will be inaugurated in Tallahassee as Florida’s 45th Governor. I am a Co-Chair of the Governor’s Inaugural Prayer Breakfast and will be attending Governor Scott’s swearing-in ceremony. It will be interesting to see how the media even covers the Governor’s solemn events with all the media frenzy of these same-sex marriages going down across the state.
For those looking for some perspective on all this I would redirect you to an editorial piece I wrote a couple years ago entitled “A Perspective on Winning and Losing Elections.” It has some timeless perspective. Thank you again for your faithfulness and know that we will never give up on this issue. Like with the abortion issue, when Roe v Wade was decided in 1973, it may take us 40 years or more to turn the tide, but we will continue to work to have the culture first, and then the state, define, protect and promote marriage and family. We will continue after this ordeal is over with the start of a long term strategy and a plan to rebuild a culture of marriage in Florida and beyond. More on that later.