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Saturday, January 03, 2015

The process of marriage equality, redux

I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.

First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").

Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.

The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."

Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.

My coments on why this all is so insane after the jump.

The original memo from the FACC's lawyer had it right. The district court's injunction only requires the named defendant clerk to issue a license to the named plaintiff. There was no class of plaintiffs or defendants before the district court. There was no statewide officer enjoined to issue, or order the issuance, of licenses across the state. The district court's declaration that the SSM ban violates the Fourteenth Amendment is not binding or preclusive as to any non-party and is not binding on any other federal or state court. The memo is a bit overwrought in suggesting that a clerk is going to be prosecuted for issuing a license. But the basic point--the district court decision is nothing more than persuasive authority to all other couples and all other clerks--is correct.

None of this is new, of course. We have been discussing procedure underlying marriage equality since last summer, when, post-Hollingsworth, we were left with an incredibly (and possibly unlawfully) overbroad injunction in California and procedural wrangling about what happens next. But Judge Hinkle's original injunction is not so broad, as he acknowledges. So any non-party clerk remains free to deny a license in light of state law on the books; it then is on any couple wanting a license to sue and challenge the constitutionality of the denial and the state SSM ban, likely winning on the strength of the persuasiveness of Hinkle's opinion. This is all messy and inefficient, but that is how constitutional litigation works, at least short of a decision by SCOTUS or a class action.

So what to make of Judge Hinkle's supplemental order? It is either unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four. That everyone seems to be praising this order for "clarifying" things shows how just confused everyone is.

The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case. There is controversy enough over whether SCOTUS does/should get the last word on constitutional meaning and what the Constitution requires; there is no way that a single district judge could possibly have the last word, even within one state. But the supplemental order insists that is the effect of the original  decision--in essence, "I have announced what the Constitution means with respect to the Fourteenth Amendment and marriage equality and every clerk in the State of Florida is bound by that meaning I have identified (even if not subject to the injunction)." One district court opinion cannot be read to have that much binding effect, particularly on people outside of that judicial district and not subject to the court's jurisdiction or venue.

Moreover, since Article III courts cannot issue advisory opinions, it is logically impossible to separate the Constitution (as interpreted) from the injunction or to have the former apply more broadly than the latter. The only people who can be bound by the court's interpretation are those bound by its remedial order. And Hinkle concedes the narrowness of the original injunction.

Beyond that, the supplemental order does not tell us anything we did not already know (or should have already known). Any same-sex couple could have sued any county clerk (beside Washington County) at any time to invalidate the ban and, if successful, could have gotten an injunction and attorney's fees; Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more. But the right of other couples to bring that suit does not emanate from Judge Hinkle or his order. And the threat of injunction and attorney's fees against a non-compliant clerk is a consequence of basic rules of constitutional litigation of which everyone should have been aware even without the supplemental order.

Nor should it be news that any clerk may (italics again Judge Hinkle's) follow that original ruling that the ban violates the Fourteenth Amendment. Of course a clerk may follow the ruling, for the same reason she could ignore it--absent injunction, preclusion, or binding precedent, every clerk retains the authority to decide her legal and constitutional obligations, unless and until her interpetation is overruled by a higher state official or a binding court decision. Otherwise, note the internal contradiction of the supplemental order--a clerk who agrees with him may follow the ruling, but a clerk who disagrees must follow the ruling.

Everyone is also reading the supplemental order to threaten money damages for any clerk who does not issue a license. I do not read the order as suggesting damages as a consequence. But even if Hinkle did threaten that, I do not see how any damages action could overcome qualified immunity--that it was clearly established that the Fourteenth Amendment required clerks to issue licenses to same-sex couples. There is no binding precedent on this in Florida; neither SCOTUS nor the Eleventh Circuit has spoken. We have a circuit split nationally (even if it is largely one-sided) and decisions from one federal and two state trial judges within Florida. I believe that banning same-sex marriage violates the Fourteenth Amendment. But no way is that conclusion clearly established, as that concept is currently understood. So damages are not remotely possible.

The only appropriate procedural move was by the Orange County Clerk of Courts, who got that state-court declaratory judgment. In essence, the state court established a state-court order that the SSM ban is unconstitutional and that the Orange County Clerk, as a party to the state-court action,is not bound by the state prohibition, is free to issue licenses to same-sex couples, and is now protected by an order of a court that actully had jurisdiction over her (which Judge Hinkle did not).

As a policy matter, I like where we end up: every clerk in the state is likely to issue marriage licenses to same-sex couples and the attorney general is not going to stop them. A mass ceremony is planned for just after midnight Tuesday in Broward County. And I am surprised that Florida, which hardly the leading edge on SSM, is not going to be one of the recalcitrant states dragged kicking and screaming to marriage equality by SCOTUS. Still, it would have been nice if everyone involved, including the federal judge, had a better sense of the underlying processes.

Posted by Howard Wasserman on January 3, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I realize I'm very late to this thread, but what kind of declaratory judgment is it that the state court issued? On it's face, there doesn't appear to have been any adverse party or even any opportunity for briefing. Is this anything more than an advisory opinion by a court to a county clerk? If so, not sure how it it would immunize the clerk from damages.

Posted by: SMG | Feb 7, 2015 2:03:32 PM

By the way, one reason to be a bit less solicitous of Judge Hinkle is this line (top of p.3): "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."

Except no one here is defying a court order because only Washington County Clerk is under a court order, and only as to the plaintiff couple. And no one here is refusing to follow law they don't like, because the whole point is no one is entirely sure what the law is. This hints at trying to give a broader scope to his opinion.

Posted by: Howard Wasserman | Jan 3, 2015 4:43:44 PM

JHW: That may be a plausible reading, although calling it "somewhat heavy-handed" may be an understatement. But if so, I think my point stands that everyone else is misapprehending what it did or is treating it as much, much more than that. As soon as the order came out, everyone (the AG, the FACC) changed their tune. But why, since they already should have known everything in the order.

Posted by: Howard Wasserman | Jan 3, 2015 3:53:49 PM

"The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case."

I did not read the judge's supplemental order to suggest otherwise. In other words, I think the judge was saying, "You all have a pre-existing obligation to obey the law as you best understand it, and in my opinion, as I explained in my earlier ruling, the best understanding of the law is that you must issue these licenses. But that's not *because* of anything I have done."

The only legally important part of the supplemental order is its clarification that the injunction only applies to one clerk, with respect to one couple. The rest is a somewhat heavy-handed reminder about background realities that have nothing to do with the scope of the judge's original ruling.

Posted by: JHW | Jan 3, 2015 12:03:18 PM

"Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more."

I think you're missing a "non" in there.

As an aside, it can be dangerous to cite decisions from other USDC judges in the same district in federal district court litigation. Some USDC judges think other judges in the district are -- well, let's just say "not great" -- and the fact that those "not great" judges came out one way on an issue will generally make them more inclined to reach the other result. The bottom line is that unless you've done the research and are comfortable that your judge isn't antagonistic to the other USDC judge (s/he cites his opinions, they appear together, etc.), I wouldn't highlight the citation. This doesn't mean not to cite it, just treat it as you would any run-of-the-mill USDC decision you are citing for persuasive guidance.

Posted by: Er... | Jan 3, 2015 11:35:01 AM

What exactly did I attribute to the supplemental order that was not in it? I am more critical of those who are reading things into the order(e.g., the risk of damages) or who are reading the order as actually achieving something significant or as resolving all these disputed issues. The order didn't do those things because it couldn't do those things.

Posted by: Howard Wasserman | Jan 3, 2015 11:00:48 AM

The greenberg memo is careful to point out that the question of scope of injunctions is hardly as clear as you make it sound here, particularly when dealing with civil rights injunctions against government officials.

Moreover, the supplemental order, while hardly a model of clarity, seems to be saying none of the things read into it. You point this out, but then proceed to criticize the judge for saying things that are not actually in the order.

I wish you had focused a bit less on insults and a bit more on analysis here. I was more confused by this post than by the supplemental order itself.

Posted by: advisory opinion | Jan 3, 2015 10:31:39 AM

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