Case 4:14-cv-00107-RH-CAS Document 105 Filed 12/29/14 Page 1 of 8

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JAMES DOMER BRENNER, et al.,

Plaintiffs,

Case No. 4:14-cv-107-RH-CAS

v.
RICK SCOTT, et al.,
Defendants.
____________________________________
SLOAN GRIMSLEY, et al.,
Plaintiffs,

Case No. 4:14-cv-138-RH-CAS

v.
RICK SCOTT, et al.,
Defendants.
____________________________________
GRIMSLEY PLAINTIFFS RESPONSE TO
EMERGENCY MOTION FOR CLARIFICATION

Case 4:14-cv-00107-RH-CAS Document 105 Filed 12/29/14 Page 2 of 8

The Grimsley Plaintiffs (Plaintiffs) file this response to Defendant Washington County
Clerks (Clerk) Emergency Motion for Clarification (Brenner Doc. 99) (Motion) in
accordance with the Courts December 24, 2014, order (Brenner Doc. 101 at 4, 3). In her 1
Motion, the Clerk asks whether the Courts August 21, 2014, order granting a preliminary
injunction (Brenner Doc. 74) (Order) means that she must grant marriage licenses to all
otherwise eligible same-sex couples or only to the couple specifically named in the Courts
injunction. Motion (Brenner Doc. 99) at 1-2. Plaintiffs believe the Courts Order makes clear
that the Clerk, like all county clerks in Florida, must grant marriage licenses to all eligible samesex couples.

I.

This Courts injunction requires county clerks to issue marriage licenses to all
eligible same-sex couples because they are acting in concert or participation with
State defendants.
By the very terms of the Courts injunction, clerks must issue licenses to all eligible

same-sex couples. Paragraph 4 of the Orders relief section states that [t]he defendant Secretary
of the Florida Department of Management Services and the defendant Florida Surgeon General 2
must take no steps to enforce or apply these Florida provisions on same-sex marriage: Florida
Constitution, Article I, 27; Florida Statutes 741.212; and Florida Statutes 741.04(1), and
that [t]he preliminary injunction binds the Secretary, the Surgeon General, and their officers,

Although the named clerk defendant is Harold Bazzell, Mr. Bazzell was replaced by Lora Bell
as the Washington County Clerk in the November 2014 elections. See Carol Kent, Lora Bell
sworn in as Clerk of Court, WASHINGTON COUNTY NEWS, available at
http://www.chipleypaper.com/news/local/lora-bell-sworn-in-as-clerk-of-court-1.401138
(accessed Dec. 29, 2014).
2

Defendant John Armstrong was sued in his official capacity as Surgeon General and Secretary
of Health for the State of Florida.
1

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agents, servants, employees, and attorneysand others in active concert or participation with
any of themwho receive actual notice of this injunction by personal service or otherwise.
Order (Brenner Doc. 74) at 31. 3
Florida law specifically requires the active concert or participation 4 of county clerks
with the State defendant Secretary of Health with respect to marriages. Clerks issue marriage
licenses, but the Department of Health is tasked with uniformly enforc[ing] the law throughout
the state with respect to vital records, including marriages. Fla. Stat. 382.003(3), 382.002(5)
and (16). The Department is also charged with adopt[ing] and enforc[ing] all rules necessary for
the acceptance, use, production, issuance, recording, maintenance, and processing of vital
records, including marriages. Fla. Stat. 382.003(10). Clerks are required to use Department of
Health-approved forms for certifying marriages and to send marriage records to the Department.
Fla. Stat. 382.003 (The department shall: . . . (7) Approve all forms used in registering,
recording, certifying, and preserving vital records, or in otherwise carrying out the purposes of
this chapter, and no other forms shall be used other than those approved by the department. The
department is responsible for the careful examination of the certificates received monthly from
the local registrars and marriage certificates and dissolution of marriage reports received from
the circuit and county courts. A certificate that is complete and satisfactory shall be accepted and
given a state file number and considered a state-filed record. If any such certificates are
3

All of Floridas county clerks have received notice of the injunction. They were served via
U.S. mail by counsel for the Brenner Plaintiffs. See Brenner Doc. 100 (Plaintiffs Certificate of
Actual Notice).

The phrase in active concert or participation in Rule 65 means a purposeful acting of two or
more persons together or toward the same end, a purposeful acting of one in accord with the ends
of the other, or the purposeful act or omission of one in a manner or by a means that furthers or
advances the other. Estate of Kyle Thomas Brennan v. Church of Scientology Flag Serv. Org.,
Inc., No. 809-CV-264-T-23EAJ, 2010 WL 4007591, at *2 (M.D. Fla. Oct. 12, 2010).
2

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incomplete or unsatisfactory, the department shall require further information to be supplied as

may be necessary to make the record complete and satisfactory.); Fla. Stat. 382.021 (county
clerks required to transmit all marriage licenses to Department of Health on or before 5th of
every month). The active concert of the clerks with the Department of Health is also reflected in
other statutes. See, e.g., Fla. Stat. 382.002 (Upon receipt of a marriage license application, the
clerk shall collect and receive a fee of $4 which shall be remitted to the Department of Revenue
for deposit to the Department of Health to defray part of the cost of maintaining marriage
records.); see also State of Florida Department of Health, Office of Vital Statistics, Application
for

Marriage

Record

for

Licenses

Issued

in

Florida,

available

at

http://www.floridahealth.gov/certificates/certificates/marriage/_documents/DH_261_App_Marri
age.pdf (Department of Health form for obtaining marriage records notes that certificate of
marriage must be recorded by the clerk of court) (accessed Dec. 29, 2014). 5
The Courts Order recognized this connection between county clerks and at least one of
the enjoined state agencies concerning marriage licenses by enjoining the enforcement of Fla.
Stat. 741.04(1). Section 741.04(1) provides that clerks and county court judges may not issue
marriage licenses to same-sex couples; it says nothing about the duties of any state agencies with
respect to the restriction of marriage to different-sex couples. Its inclusion in the Order makes
sense because clerks work in active concert with the Department of Health.

For its part, the Department of Healthin executing its responsibility to ensure that clerks use
satisfactory marriage certificates, Fla. Stat. 382.003(7), and in compliance with the
injunctionmust insist that all clerks use marriage forms that permit marriages of same-sex
couples.

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Thus, the Clerk is directly bound by the Courts injunction in Paragraph 4 of the Courts
injunction to take no steps to enforce or apply [the] Florida provisions on same-sex marriage.
(Brenner Doc. 74 at 31). 6

II.

In addition to being bound by the Courts injunction, county clerks are required
to issue marriage licenses to all eligible same-sex couples because this Court has
held the marriage ban to be facially unconstitutional.
Even if county clerks were not subject to the injunction in Paragraph 4 of the Courts

Order, (Brenner Doc. 74 at 31), they cannot enforce laws that this Court has held to be
unconstitutional. In this facial challenge to the marriage ban, this Court explicitly held that
Floridas same-sex marriage provisions violate the Due Process and Equal Protection Clauses.
Order (Brenner Doc. 74) at 24. An unconstitutional law is void and is as no law. Penn v. Atty
Gen. of the State of Ala., 930 F.2d 838, 841 (11th Cir. 1991); see also Coral Springs Street Sys.,
Inc. v. City of Sunrise, 371 F.3d 1320, 1334 (11th Cir. 1991) (There is no question that an

Defendants prior filings in this litigation (filed jointly by the state defendants and the
Washington County Clerk) recognize that the Courts injunction, when implemented, would not
be limited to the issuance of just one marriage license to the unmarried plaintiff couple. See, e.g.,
Defendants Joint Motion to Continue Stay Pending Appeal and Opposition to Plaintiffs
Motions to Lift Stay (Brenner Doc. 92), at 5 (If the Eleventh Circuit reverses, and if people
married in the meantime, those new marriages would be subject to uncertainty.); Appellants
Motion to Extend Stay of Preliminary Injunctions Pending Appeal, and for Expedited Treatment
of this Motion (Brenner Doc. 103-2), at 7 (PDF p.12) ([T]hose who did marry based on the
preliminary injunction[] would face uncertainty regarding their marital status if this Court
reversed.); Application to Stay Preliminary Injunctions of the United States District Court for
the Northern District of Florida Pending Appeal (Brenner Doc. 103-1), at 14-15 (PDF pp.22-23)
(asserting that absent an extended stay, there would be a rush to the marriage officiant while
the appeal is pending, and those who did marry based on the preliminary injunction would face
uncertainty regarding their marital status if this Court . . . vacates any affirmance by the Eleventh
Circuit.). As Plaintiffs made clear in their opposition to the extension of the stay, even in the
event of a reversal on appeal, there would be no uncertainty regarding the marital status of those
who married while the injunction is in effect. Brenner Doc. 93 at 7. Plaintiffs reference these
portions of Defendants briefs simply to note their recognition of the scope of the injunction.
4

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unconstitutional statute is void under state law.); Doe v. City of Albuquerque, 667 F.3d 1111,
1127 (10th Cir. 2012) ([A] successful facial attack means the statute is wholly invalid and
cannot be applied to anyone. (quoting Ezell v. City of Chicago, 651 F.3d 684, 69899 (7th Cir.
2011))) (emphasis and internal quotation marks omitted). Where a court rules that a state law is
unconstitutional, government officials are expected to abide by that ruling. See, e.g., Soto-Lopez
v. New York City Civil Serv. Commn, 840 F.2d 162, 168-69 (2d Cir. 1988) (When a state
statute has been ruled unconstitutional, state actors have an obligation to desist from enforcing
that statute.); Alliance to End Repression v. Rochford, 565 F.2d 975, 980 (7th Cir. 1977) (when
statute is attacked as facially unconstitutional . . . it can be assumed that if the court declares the
statute or regulation unconstitutional then the responsible government officials will discontinue
the statutes enforcement). 7 Indeed, that is precisely what has happened in other states when
federal district courts have declared those states marriage bans to be unconstitutional: marriage
licenses were issued to all eligible same-sex couples because the court made clear what the law
is, and government follows the law. 8
* * *

The fact that an appeal is pending does not change the obligations of county clerks. The law is
clear that absent a stay, a courts decision is effective even if an appeal is pending. See, e.g.,
Natl Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 250 (11th Cir. 1982); accord Deering
Milliken, Inc. v. FTC, 647 F.2d 1124, 1129 (D.C. Cir. 1978) ([T]he vitality of th[e] judgment is
undiminished by pendency of the appeal. Unless a stay is granted . . . , the judgment remains
operative. (citing Hovey v. McDonald, 109 U.S. 150, 161 (1883))).
8

See, e.g., Lisa Baumann, Judge overturns Montana same-sex marriage ban, CHRISTIAN
SCIENCE MONITOR, Nov. 19, 2014, available at http://www.csmonitor.com/USA/Latest-NewsWires/2014/1119/Judge-overturns-Montana-same-sex-marriage-ban-video (accessed Dec. 29,
2014); Mark Price, Mecklenburg issued most same sex-marriage licenses in NC, CHARLOTTE
OBSERVER,
Oct.
18,
2014,
available
at
http://www.charlotteobserver.com/2014/10/18/5250898/mecklenburg-led-in-issuingsame.html#.VIh1D003OUl (accessed Dec. 29, 2014).
5

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The Clerks Motion raises a concern about criminal prosecution for issuing marriage
licenses to same-sex couples beyond the plaintiff couple referenced in paragraph 6 of the
injunction. Motion (Brenner Doc. 99) at 2, 3-4. But Section 741.04(1)s prohibition against
clerks issuing marriage licenses to same-sex couples (the violation of which is a criminal
offense, see Fla. Stat. 741.05) was held by this Court to be unconstitutional, and its
enforcement was enjoined. Order (Brenner Doc. 74) at 24, 31. County clerks are therefore
protected from criminal prosecution. And because, as discussed above, all government officials
are expected to stop enforcing a law that has been declared unconstitutional, they are protected
regardless of whether they are directly subject to the Courts injunction to cease enforcing the
statute.
Moreover, the State, through two state officials sued in their official capacity, is a party to
the case. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (Suits against state officials in their official
capacity . . . should be treated as suits against the State because official-capacity suits
generally represent only another way of pleading an action against an entity of which an officer
is an agent. (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985))). Prosecuting clerks for
issuing marriage licenses to same-sex couples would constitute enforcement of one of the
invalidated provisions in violation of the Courts injunction. Indeed, the Attorney General,
having succeeded in getting herself and the Governor dismissed from this litigation on the basis
that full relief could be granted against the remaining state defendants, could not now permit
prosecutions against clerks to proceed. See Fla. Stat. 16.08 (The Attorney General shall
exercise a general superintendence and direction over the several state attorneys of the several
circuits as to the manner of discharging their respective duties, and whenever requested by the
state attorneys, shall give them her or his opinion upon any question of law.).

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For the above-stated reasons, Plaintiffs respectfully request that the Court confirm that its
Order holding the marriage ban unconstitutional and granting Plaintiffs requested preliminary
injunction (Brenner Doc. 74) requires the Clerk, like all county clerks, to issue marriage licenses
to all eligible same-sex couples.

Date: Monday, December 29, 2014

Certificate of Service: Today, I electronically filed this document with the Clerk of Court using
CM/ECF, which automatically serves all counsel of record via electronic transmission of Notices
of Electronic Filing generated by CM/ECF.
Respectfully submitted,
/s/ Daniel B. Tilley
Daniel B. Tilley
Florida Bar No. 102882
ACLU Foundation of Florida
4500 Biscayne Blvd., Suite 340
Miami, FL 33137
(786) 363-2700
DTilley@aclufl.org

Stephen F. Rosenthal
Florida Bar No. 131458
Podhurst Orseck, P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
(305) 358-2800
SRosenthal@podhurst.com

Leslie Cooper
ACLU Foundation
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2627
LCooper@aclu.org
ATTORNEYS FOR PLAINTIFFS