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Judge Hinkle Affirms Himself: Same-Sex Marriage for All Fla. Counties

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By Mark Wilson, Esq. on January 05, 2015 2:25 PM

Generally, when you want to rely on amateur legal interpretations promising that you'll be "arrested" if you try and do such-and-such things, you're in the realm of some online forum or chain email from Aunt Hilda complaining about how the Obama administration is arresting people who put up Christmas decorations.

But what happens when it's actual lawyers who are making this crazy advice?

You'll Be Arrested!

And of course we're in Florida. You'll recall that, in August, Judge Robert Hinkle held the state's ban on same-sex marriages unconstitutional -- like the overwhelming majority of judges to decide the issue. The order was to take effect at midnight tonight. Pam Bondi, the Secretary of State, requested -- and was denied -- a stay on the order pending outcome of the appeal at the Eleventh Circuit.

So marriages start just after midnight, right? Not according to a memo by Greenberg Traurig, a law firm retained by the Florida Association of Court Clerks and Comptrollers (FACC). The December 15, 2014, memo claimed that only one clerk named in the complaint was bound by the federal court's decision, and even then, the injunction applied to only the couples named in the complaint. Other clerks in other counties could issue marriage licenses to other couples, but Greenberg Traurig's memo advised that they might be subject to criminal charges for violating the state's same-sex marriage ban.

This is the same logic that Proposition 8 supporters tried (unsuccessfully) to use after the Ninth Circuit struck down California's same sex marriage ban, and the U.S. Supreme Court tossed the case because the petitioners didn't have standing. It's a long-established rule that the judgment of a court sitting in equity is binding only on the named parties. Makes sense, to some degree: Equitable relief is pretty strong stuff, so a court couldn't, and shouldn't, have the authority to bind non-parties to, say, an injunction, which is the relief that the federal court granted against Florida's same sex marriage ban.

Wait, Will You Be Arrested?

The clerk of Washington County, the only clerk named in the complaint, asked for clarification on the law from Hinkle. In an order issued on New Year's Day, he clarified that, yes, the order doesn't require clerks to issue marriage licenses to same-sex couples. However, the Constitution does.

Orders enjoining enforcement of unconstitutional statutes are tricky things. The instant order applies to the parties, sure, but in the background, the court just declared the whole statute unconstitutional, and a state official can't enforce an unconstitutional law. As Hinkle pointed out at the end of his order, "As in any other instance involving parties not now before the court, the Clerk's obligation to follow the law arises from sources other than the preliminary injunction."

Even so, the U.S. Supreme Court has weighed in on the subject before, and Greenberg Traurig might have a point. In a footnote to Camreta v. Greene, the majority noted that district court decisions aren't binding throughout the state or even on other judges in the same district: "[D]istrict court decisions -- unlike those from the courts of appeals -- do not necessarily settle constitutional standards or prevent repeated claims of qualified immunity." Another Supreme Court opinion, from 2011's American Electric Power Co. v. Connecticut, agrees: "[F]ederal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court."

Then again, the Eleventh Circuit's refusal to stay Hinkle's order could be considered a ratification of the decision, making it binding. The court had the power to stop the order from going into force, but declined to exercise that power.

As Reuters reports, same-sex marriages are set to begin in Miami-Dade County today, after another federal judge's order this morning. Clerks in other Florida counties plan to issue same-sex marriage licenses beginning at 12:01 a.m. Tuesday.

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