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.
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.
The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so. In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.
BREAKING: Judge clarifies that Constitution means #marriage ruling applies to ALL 67 #Florida counties for issuing licenses. #HappyNewYear!Seems pretty clear, right? All 67 counties operate under the same constitution.
— ACLU of Florida (@ACLUFL) January 1, 2015
But Pam Bondi cannot help but be Pam Bondi.
TALLAHASSEE, Fla—Following significant public confusion about the federal-court injunction, the court today granted the clerk of court’s request for clarification. In the order, the court specified that the injunction does not require a clerk to issue licenses to same-sex couples other than the plaintiffs, but the court stated that "a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case." Attorney General Bondi’s statement is as follows:
"This office has sought to minimize confusion and uncertainty, and we are glad the Court has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."Yes, decide how to proceed! Either treat same-sex couples equally or get ready to be litigated into submission!
I'm not impressed and I'm not alone.
“She’s saying look, ‘Judge Hinkle did not tell the clerks that they are required to issue marriage licenses to same-sex couples, however, he told them that they may issue marriage licenses’ and she’s not going to stand in their way of whatever independent decisions they may make,” he said.
But Simon said Bondi’s response continued to muddy the waters after months of legal wrangling, saying her “willful misreading of Hinkle’s order is creating confusion.”
“She is not serving the state of Florida and causing precisely the kind of chaos that this judge has tried to prevent with today’s order,’’ he said. “This is the low point in the performance of an attorney general.”But let's not let one sourpuss attorney general stand in our way, this is a great day for Florida!