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Threat of Arrest for Letting Gays Marry

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By Matt Baume

Florida clerks can start issuing marriage licenses to gay couples in January — but if they do, they could risk arrest and jail time. An anti-gay group in Hawaii is still trying — and failing — to stop marriages. And things are still looking bad for the National Organization for Marriage.

Marriage is supposed to start in Florida on January 6th, but that doesn’t mean it will. Back in August, a federal judge ruled against the state’s marriage ban, and after months of waiting, his ruling is scheduled to finally go into effect on January 6. Florida Attorney General Pam Bondi asked the US Supreme Court for another delay, but on Friday they said no, the marriages can go ahead.

The situation is complicated because as of January 6th, the ban will be officially unconstitutional, but also still on the books. Florida’s marriage ban includes some really steep penalties, and clerks who obey the judge’s ruling and issue a license could be arrested, and thrown in jail for a year. It would be crazy if that actually happened, but all it would take is a clerk willing to test the law, and a prosecutor willing test it back at them. We don’t know if that’ll going to happen, and we might not find out until the stay expires in January.

In the mean time, a judge in Florida has granted the state’s first divorce request from a lesbian couple. The U.S. Supreme Court is planning to consider whether to take up a marriage case from Louisiana at their next conference on January 9th. And anti-gay politicians in Hawaii have asked the state Supreme Court to overturn the state’s marriage equality law. This is a desperate lawsuit, and they have virtually no chance of stopping marriage at this point, but hey, it’s their life.

And finally, with all this marriage stuff going on, you might think that the National Organization for Marriage might want to get involved somehow. But no, they’re nowhere to be found in any of those states. Instead, the one thing that they DID do last week, aside from sending out fundraising emails, is file an appeal in a tax case that they already lost once. And that case has nothing to do with marriage, it’s just an argument with the IRS. At this point, all NOM does is fundraise to pay for lawsuits about fundraising. And they can’t even win those lawsuits.

55 Comments

  • 1. sfbob  |  December 22, 2014 at 12:19 pm

    It would be similar to arrests for violating sodomy laws. They can happen but nobody can actually be prosecuted. In this case what'll happen is there'll be an additional lawsuit, as seems to be happening in Kansas. And of course the state will eventually lose and either the state or the county clerks will be liable for the plaintiffs' legal fees as well as their own. But that's responsible Republican government for you.

    Alternatively a county clerk might get arrested and then turn around and file a complaint against the state for malicious prosecution.

  • 2. davepCA  |  December 22, 2014 at 12:19 pm

    " At this point, all NOM does is fundraise to pay for lawsuits about fundraising. And they can’t even win those lawsuits. "
    http://www.sadtrombone.com/?play=true

    : )

  • 3. bythesea66  |  December 22, 2014 at 12:28 pm

    I suspect the clerks willl comply with the ruling without having any legal problems whatsoever (though it's wise to raise the specter of arrests politically). That said, if they actually want to push arresting officials for valid marriages, then the appropriate response is "please proceed bigots."

  • 4. Eric  |  December 22, 2014 at 12:56 pm

    Is anyone tracking the cost of bigotry?
    http://www.seattlepi.com/news/article/Idaho-must-

  • 5. franklinsewell  |  December 22, 2014 at 1:54 pm

    Hi Everyone: In other news, I have it on good authority that the plaintiffs in Bourke v. Beshear, the Kentucky case submitted their reply briefs to the Supreme Court today. So, Kentucky should be reviewed by the Justices at their 1/9 conference.

  • 6. Zack12  |  December 22, 2014 at 2:01 pm

    Was looking up the various cases from the 11th circuit and from what I've been able to find out out about William Duffey Jr, the district court judge in GA, he is going to rule against us.
    The only suprising thing is that he hasn't done so already.

  • 7. scream4ever  |  December 22, 2014 at 2:09 pm

    I thought they waived the reply brief?

  • 8. franklinsewell  |  December 22, 2014 at 2:14 pm

    Nope .. Kentucky never did. Michigan waived, as did, TN, LA, and OH.

  • 9. guitaristbl  |  December 22, 2014 at 2:20 pm

    Because of course out of the 10 active district judges plus 7 active senior judges in the northern district of Georgia, our side had to get one of the only three republican appointees…

  • 10. Pat_V  |  December 22, 2014 at 2:32 pm

    But do we know for sure that these cases have been officially "sent to conference" for January 9?

  • 11. Raga  |  December 22, 2014 at 2:58 pm

    Here it is! Can't wait for the docket update tomorrow! http://www.scribd.com/mobile/doc/250793336

  • 12. franklinsewell  |  December 22, 2014 at 3:12 pm

    Pat – One never knows until the Docket is officially updated as Raga suggests below. We are all hoping that the rest of the cases will be distributed tomorrow (the last day for distribution for the Jan. 9 conference).

  • 13. franklinsewell  |  December 22, 2014 at 3:18 pm

    Oh, hoh! But Ohio Petitioners filed a reply as well. It showed up on the Docket today!

  • 14. netoschultz  |  December 22, 2014 at 3:37 pm

    http://www.news-press.com/story/news/2014/12/22/l

    Lee County's clerk of court Monday sent out a memo saying the office would not begin issuing marriage licenses Jan. 6 because of the ambiguity created by the Supreme Court's decision.

  • 15. netoschultz  |  December 22, 2014 at 3:38 pm

    http://www.firstcoastnews.com/story/news/local/20

    The Duval County Clerk of Court said Monday that it will not issue same-sex marriage licenses — at least for now.

  • 16. netoschultz  |  December 22, 2014 at 3:39 pm

    http://www.bradenton.com/2014/12/22/5545806/follo

    After a teleconference Monday with legal counsel, R.B. "Chips" Shore, the clerk and Manatee County comptroller, said he would not issue marriage licenses to gay couples, since court permission to do so has only been given to one north Florida county.

  • 17. RnL2008  |  December 22, 2014 at 3:42 pm

    Lucky us…..NOT!!!

  • 18. RnL2008  |  December 22, 2014 at 3:43 pm

    Frankly, the lawyers know this is just another stall tactic and if the State wants to reimburse more money because they will lose here as well…….then I feel sorry for the taxpayers in Florida.

  • 19. josejoram  |  December 22, 2014 at 3:46 pm

    Does not the state's legislative have to draft into law the judicial rulings?

  • 20. OctaA  |  December 22, 2014 at 4:09 pm

    It is unfortunate, but there have also been cases where the odds were highly against us getting a judge that would deliver a positive ruling such as the southern district of Mississippi where out of 6 active judges and 4 senior judges, we got Reeves, the only democratically appointed judge.

    Similarly the odds were very low that we would get Bataillon again in Nebraska, the same judge that ruled for us in 2005, in Bruning, before being overturned by the Eighth Circuit.

  • 21. Elihu_Bystander  |  December 22, 2014 at 4:16 pm

    It's OKAY, one way or another he will get a smack down.

  • 22. sfbob  |  December 22, 2014 at 4:21 pm

    I'm not certain but I believe it is due to the doctrine of separation of powers that while the courts may declare a law invalid, it remains on the books until the legislature removes it. The last ban on interracial marriage was abolished only 14 years ago, even though it had been unenforceable since 1967. A number of states still refuse to remove their sodomy laws despite Lawrence vs Texas; in fact some states have made a particular point of doing so. People can in principal still be arrested for violating those laws even though nobody can be convicted under them. They are used as a subtle–or sometimes not so subtle–form of harassment.

  • 23. Steve84  |  December 22, 2014 at 4:28 pm

    Clerks don't really have any power. It's a purely administrative position that shouldn't be an elected office to begin with. So they use any chance they get for grandstanding. This is an opportunity for them to pretend like they have some authority and grow their ego.

  • 24. Raga  |  December 22, 2014 at 4:58 pm

    Yeah, strange. I guess waiving the 14 day waiting period is something entirely different from waiving a reply after all.

    Here's the Ohio reply: http://www.scribd.com/doc/250802246/14-556-Ohio-P

  • 25. Eric  |  December 22, 2014 at 7:07 pm

    No, they don't have to.

  • 26. DACiowan  |  December 22, 2014 at 7:22 pm

    Tennessee's plaintiffs filed as well: https://www.scribd.com/doc/250803785/14-562-Tenne

    (Conference distribution, here we come)

  • 27. scream4ever  |  December 22, 2014 at 7:35 pm

    So did Michigan waive or have they now filed?

  • 28. Raga  |  December 22, 2014 at 7:39 pm

    Michigan Plaintiffs waived their right to reply (not the waiting period). All filings in the Sixth Circuit cert petitions are now in. Waiting to see the golden words "DISTRIBUTED for Conference of January 9, 2015" on all these dockets tomorrow!

  • 29. KnottiBuoy  |  December 22, 2014 at 9:37 pm

    We were very lucky with Walker and Shelby…. Now the snowball is much bigger and rolling downhill.. A few road biscuits on the way is to be expected.

  • 30. Zack12  |  December 23, 2014 at 2:45 am

    One more thing to keep in mind, while Democratically appointed judges are far more likely to rule in our favor, I would caution against assuming they a 100% lock, especially ones from the South.

  • 31. F_Young  |  December 23, 2014 at 5:30 am

    Ohio lesbian couple’s divorce voided by Athens County judge after earlier OK
    http://www.dispatch.com/content/stories/local/201

  • 32. Wolf of Raging Fires  |  December 23, 2014 at 5:38 am

    "Not-married" to divorced to "not-married."

    Got it. This craziness needs to end!

    "Common Pleas Court Judge George McCarthy ruled on Thursday that 'it was not apparent' to him that the parties involved in the case were of the same gender when he approved a magistrate’s decision in November granting the divorce."

    What the hell does that mean?

  • 33. RemC_Chicago  |  December 23, 2014 at 6:00 am

    I don't. They voted for the Republican leadership—or allowed it to happen by not voting.

  • 34. RemC_Chicago  |  December 23, 2014 at 6:03 am

    It means that the rules apply differently when they're being applied to our community.

  • 35. RemC_Chicago  |  December 23, 2014 at 6:08 am

    Request for clarity on a point of confusion. The plaintiffs involved in Hinkle's ruling were from all over Florida, particularly South Florida. He overturned the bans, the Supreme Court refused to step in, allowing marriages to begin in a couple of weeks. What is the basis for these clerks to claim they can refuse to issue licenses because "of the ambiguity created by the Supreme Court's decision"? Where's the ambiguity they claim?

  • 36. Wolf of Raging Fires  |  December 23, 2014 at 6:17 am

    Big picture, yes, that's what it means, Rem.

    My question is how did he not know the genders of the people involved? Was he not paying attention and this is his "oops"? It's just a stupid response that makes no sense.

  • 37. RemC_Chicago  |  December 23, 2014 at 6:28 am

    I read elsewhere that that is exactly what happened. He didn't notice the genders involved until afterwards. And then he had his "oops, never mind" moment.

  • 38. Wolf of Raging Fires  |  December 23, 2014 at 6:33 am

    He needs to lose his job then. I'm sick of idiots ruining lives because they doesn't mean enough to them to pay attention. He could've said something less fluffed up than "it was not apparent." He could've said it was an honest mistake, but he had to say it obscured legalese. That only adds insult to injury.

  • 39. RemC_Chicago  |  December 23, 2014 at 6:37 am

    Hah! "Insult to Injury" could be the title of a book of collections of circumstances like this—from 2014 alone it would make for quite a tome.

  • 40. Wolf of Raging Fires  |  December 23, 2014 at 6:44 am

    I know, right?!

  • 41. Silvershrimp0  |  December 23, 2014 at 6:50 am

    SCOTUS Blog reports that all pending marriage cases will be considered at the Jan 9 conference. http://www.scotusblog.com/2014/12/same-sex-marria

  • 42. Raga  |  December 23, 2014 at 7:06 am

    YES!!

    "Lawyers handling the new round of same-sex marriage cases at the Supreme Court said Monday that the Court staff has informed them that the Justices will take up those cases at their next private Conference, on January 9. […] The distribution of the four Sixth Circuit cases for the January 9 Conference is not yet reflected on the Court’s electronic docket, but is expected to be entered there on Tuesday."

  • 43. Fledge01  |  December 23, 2014 at 7:30 am

    The courts can also impose large punitive damages on top of lawyer fees against a police department for arresting somebody under a law they know to be invalid. Usually this type of damages are awarded in situations where a police department has lost in court more than once on nearly identical set of facts.

  • 44. Fledge01  |  December 23, 2014 at 7:32 am

    This is different state by state, whether their duty is administrative or political.

  • 45. palerobber  |  December 23, 2014 at 9:25 am

    why would they be look at Louisiana when the 5th Circuit has yet to consider the case?

    also, i assume the fact that they're considering LA but not TX or MS is based on LA being the only one where plaintiffs asked for SCOTUS review, not based on LA being the only one where the state ban was upheld — do i have that right?

  • 46. franklinsewell  |  December 23, 2014 at 9:28 am

    Louisiana requested cert before appellate review. That's an option available to any party in a case. Neither party in the Mississippi or Texas cases have done so.

  • 47. Steve84  |  December 23, 2014 at 10:36 am

    Even when clerks are elected, it's pretty much entirely an administrative job. Deciding whether to let gay couples marry or not is about the only political decision they ever make.

  • 48. Ryan K (a.k.a. KELL)  |  December 23, 2014 at 5:02 pm

    The order has six parts, and all the clerks seem to be focused on part 6 which is about Washington County and specific relief to one plaintiff, while ignoring part 4 which impacts all future attempts for a same-gender couple to get married. It's a bunch of poppycock and delay tactics by Bondi and social conservatives. I hope they enjoy hefty civil penalties and the visit from court marshals.

  • 49. Ryan K (a.k.a. KELL)  |  December 23, 2014 at 5:05 pm

    Not sure why the pro-ME side on this one went right to SCOTUS, other than knowing that the 5CA would be a waste of time given they'll rule against them as well, and didn't want to wait on that ruling to push ahead. In my opinion, SCOTUS simply holds this while taking one or more of the 6CA cases (DeBoer at a minimum), decides it all, then vacates and remands this back with instructions to rule in compliance with DeBoer.

  • 50. SoCal_Dave  |  December 24, 2014 at 9:22 am

    I think this highlights just how unimportant the genders of the couple should be! He shouldn't have to be paying attention to that – it shouldn't matter.
    (I know in this case it regretfully *does* matter….. just sayin')

  • 51. aiislander  |  December 25, 2014 at 10:04 am

    NOM's situation couldn't possibly happen to a more deserving group of hateful bigots.

    Karma's a bitch. I've, only been in drag once in my long life (for Halloween) but, although the facial hair will stay, I'll be breaking out my flaming scarlet red dress to dance on their grave.

    Did anyone else get NOM's appallingly pathetic Christmas Card? With awful pic of Brian, fishwife, and all 8 unfortunate DNA carriers? (along with a disgustingly dishonest plea for money of course…)
    =

  • 52. bayareajohn  |  December 25, 2014 at 4:30 pm

    By saying it was "not apparent" this "judge" is dodging responsibility. "Not apparent, it wasn't my mistake or oversight, it was maybe hidden on purpose, nothing to see here, move along…"

    Coward.

  • 53. RnL2008  |  December 25, 2014 at 4:56 pm

    We need to make a book called Divorce for Dummy Judges…….lol!!!

  • 54. josejoram  |  December 29, 2014 at 11:56 pm

    More on Florida issuing marriage licenses to same sex couples: http://blogs.miaminewtimes.com/riptide/2014/12/fl

  • 55. josejoram  |  January 1, 2015 at 3:37 am

    http://www.lgbtqnation.com/2014/12/state-judge-sa

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