Editorial: Lee County's refusal of same-sex marriage licenses disturbing
News-Press Editorial Board 9 p.m. EST December 22, 2014
We believe the Lee County clerk of court is misinterpreting its legal advice and going against a decision by the highest court in the land, allowing for same-sex unions to begin in Florida.
The clerk, working off what is at best confusing advice of their attorney, says it will not issue marriage licenses to same-sex couples beginning Jan. 6, the day the constitutional ban on such unions was supposed to end. This comes just four days after the U.S. Supreme Court refused to block same-sex marriages, saying it was not going to step into a Florida case in which a federal judge had declared the ban on gay marriage unconstitutional.
Clerk of Court Linda Doggett is basing her decision not to honor those unions, or the U.S. Supreme Court's decision, on a memorandum she received from the law firm of Greenberg Traurig. The memorandum attempted to clarify things for counties, such as Lee and Collier, that were not party to a lawsuit involving a case in the U.S. District Court for the Northern District of Florida, declaring the ban unconstitutional in Washington County.
That memorandum was written July 1 and updated after the Northern District court's decision but before the U.S. Supreme Court refused to continue the stay in Florida past Jan. 5.
The memorandum says: "Our conclusion was based on rules of law that a person who is not party to the litigation cannot be bound by a trial courts order or injunction, and that a federal district court's order (or a Florida circuit court's order) does not have binding precedential effect on other courts, state or federal.
So, Lee will ignore the U.S. Supreme Court's decision mainly because it doesn't want to violate Florida law and get arrested doing so. The memorandum says it could face criminal charges for issuing licenses without the proper legal authority. We don't see that happening.
One has to wonder how the highest court in the land became so ineffective in this state that the order of the justices really carries no weight. It's almost absurd to believe such a thing could happen.
Equality Florida. which protects the rights of same-sex couples, is preparing for a fight should Lee or another clerk of court around the state that are following similar opinions turn away any couple who shows up for a license Jan. 6. "Some clerks want to stand in the doorway and block equality," said Nadine Smith, CEO of Equality Florida. She vows they will file lawsuits with each clerk who refused to follow what she considers that new law — that same-sex couples be given the same rights as heterosexual couples.
But the law firm's memorandum also appears to contradict itself. Although it concludes that because the ruling wasn't specific to this county and Lee wasn't involved in the suit, there is this paragraph: "Thus, issuing same-sex marriage licenses would place them (clerks) at risk of criminal violation of Florida's same-sex marriage ban — if and until the ban is invalidated by a Florida district court of appeal (absent interdistrict conflict), the Florida Supreme Court or the U.S. Supreme Court.
The law firm appears to be honoring the U.S. Supreme Court's decision and considers it of enough value to override the ban. But for some reason, Lee's clerk of court is working off other language that it considers more legal in the memo. That it will wait for the Florida Supreme Court — a court that appears to carry more weight for the clerk's office, to issue an opinion before it starts issuing licenses.
Collier County Clerk of Court Dwight Brock said: "This quandary is not of our making. We are an administrative office. We should not have been put into this situation."
This fight has gone on long enough. Court after court in Florida has issued an opinion determining the ban to be unconstitutional. Even Florida Attorney General Pam Bondi, who has persisted in keeping the constitutional ban in place until there was more uniformity, said: "The U.S. Supreme Court has now spoken and the stay will end on Jan. 5."
Couples — heterosexual and of the same sex — deserve the right to choose whether to join in a union or not. Same-sex couples also should have the same right as heterosexuals to end those unions.
The Lee clerk — and all other offices around the state who may follow a similar lead — have the opportunity to do the right thing, and open the door for same sex couples to be married. It's time to do the right thing.
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