Florida judges defy constitution to wed gay couples before litigation dust settles

by Joni B. Hannigan , Editorial Staff |

(REUTERS/Javier Galeano)Same-sex couples Todd (2nd R), and Jeff Delmay with Catherina Pareto and Karla Arguello (L) get married at the Eleventh Judicial Circuit Court of Florida in Miami, Florida, Jan. 5, 2015. Florida's first same-sex weddings began in Miami on Monday, shortly before gay and lesbian couples were to begin tying the knot elsewhere in the 36th U.S. state to legalize such marriages. Judge Sarah Zabel later presided over the marriages of two Florida couples in ceremonies witnessed by a throng of media.

MIAMI (Christian Examiner) -- Delivering dozens of staged venues for media eager for photo-ops of mass gay weddings—a few Florida judges and some county clerks officiated marriages between same sex couples Monday night in a state in which residents in 2008 declared overwhelmingly their desire to honor the sanctity of marriage between one man and one woman.

Florida, the third largest state in the nation with nearly 20 million people, has continued in its battle against what some legal experts are calling "absolute lawlessness" on the part of activists who reject the law in pursuit of legislation affirming their own moral base.

"We are witnessing the demise of democracy when we have judges in black robes with the stroke of their pens invalidating million on millions of lawfully cast votes," Horatio "Harry" Mihet, chief litigation counsel for Orlando-based Liberty Counsel told Christian Examiner.

Mihet said the firestorm in Florida erupted when homosexuals in two Florida counties—Miami-Dade and Washington—filed lawsuits appealing a ballot initiative approved by voters in 2008 to enshrine traditional marriage between one man and one woman in Florida's constitution.

Judge Robert Hinkle, a Clinton appointee, of the federal district court in Tallahassee (Washington County), in August issue a ruling that declared the Marriage Protection Act (Amendment 2)—approved by 60 percent of Florida voters—was unconstitutional as part of a federal lawsuit by the American Civil Liberties on behalf of same-sex couples. He stayed his decision until midnight, Jan. 5, allowing for legal appeals. Florida Circuit Judge Sarah Zabel, in Miami-Dade County, meanwhile, had declared Florida's amendment unconstitutional in July, but also stayed her decision, pending appeals.

Liberty Counsel, which drafted the language of Amendment 2 passed by voters, filed a "friend of the court," or amicus brief, defending the "27 word amendment" and put forth the argument that those challenging the law had not shown how they are "stigmatized" by state's continuing to recognize traditional marriage.

(Liberty Counsel)Horatio "Harry" Mihet

Florida Attorney General Pam Bondi petitioned the U.S. 11th Circuit of Appeals and the U.S. Supreme Court on appeal and continues to protect the state's voters' 10th Amendment rights under the U.S. Constitution. As the case has worked its way through the courts, the 11th Circuit refused to extend Hinkle's stay, leading the way for same-sex marriage ceremonies yesterday -- in Miami-Dade, and in Tallahassee, according to Mihet.

Pinpointing what he called a "blatant misrepresentation" by the media, Mihet said major news outlets "misstated" a clarification issued by Judge Hinkle – to say that every county clerk in the state of Florida is "required" to issue marriage licenses to gay couples.

Hinkle "may not have authority over every other clerk in the state" to override what the state constitution says, according to Mihet. who said the legal maneuvering continues while the merits of the case have yet to be ruled on.

Judge Zabel lifted her stay Monday -- even in advance of Hinkle's -- to officiate the first same-sex weddings in Florida ahead of the midnight expiration of the federal judge's stay.

Noting the judge not only lifted her stay but then "promptly presided over a wedding over two couples that had filed a suit in her courtroom," Mihet said it is "remarkable" the case is still alive "in her court."

Adding that the court of appeals could remand that case back to her, Mihet said it is a "brazen" display of power and an obvious impropriety – "in open daylight without any thought to the obvious conflict of interest" that she performed the ceremonies.

"We are seeing absolute lawlessness carry the day," Mihet continued. "In any other context the types of things taking place would not be countenanced or would not be considered justice—but in this particular arena—the rules and the law and constitution are being thrown out the window in order to achieve a desired outcome as quickly and as expeditiously as possible.

"Florida voters made themselves clear in the constitution," Mihet said. "For these judges to think themselves able to cast them aside without any accountability and to not even allow the appellate process to play out without any accountability is the end of democracy."

Liberty Counsel is representing Florida Family Action, Inc., whose president, John Stemberger, spearheaded voter efforts to pass the marriage amendment, in a flurry of lawsuits aimed at preventing clerks from issuing licenses until the appeals process is exhausted.

In Jacksonville, Florida, the Duval County officials followed the lead of those in Baker, Santa Rosa, Clay, and Okaloosa counties in choosing to no longer perform court-house weddings.

Friday, Jan. 9, the federal Fifth Circuit Court of Appeals will hear oral arguments in the Louisiana, Texas, and Mississippi marriage cases.

Next week, the U.S. Supreme Court should decide whether to act on the federal Sixth Circuit's decision upholding the states' rights to keep the historic, natural definition of marriage, as Florida's citizens did by an overwhelming majority.