Pasco East Team: South Conflict

The first step to prepare Adam and Steve for legal action would be to have them petition the Clerk to perform a marriage ceremony and likely, the Clerk would turn them down. This would bolster their claim of standing when the time for litigation comes because they could show they suffered an “injury in fact,” part of the 3 part test for Article III standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, at 560. (The other 2 parts being, “causation” and “redressability”). As in Lujan, if the Plaintiffs only plan to get married eventually, the court will dismiss the claim without getting to the merits, so it’s important that they actually attempt to get married at the Courthouse. Once the hurdle to standing has been overcome, the plaintiffs can then proceed to the Constitutional analysis of their claims.

In advising Adam and Steve, we would point them to Brenner v. Scott, No. 4:14CV107-RH/CAS, 2015 WL 44260, at *1 (N.D. Fla. 2015) which says that “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 attorneys fees.”

That Brenner clarification by the District Court also says “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.” Meaning that although the preliminary injunction order in Brenner doesn’t require the clerk to issue the licenses, it would be unconstitutional for the clerk not to issue the licenses.

In Brenner the court recognized that the right to marry is a fundamental right protected by the Fourteenth Amendment’s Due Process and Equal Protection clauses and that this right “encompasses the right to same sex marriage.”

With Brenner as precedent, the law is in our favor and we will take legal action: starting with a complaint and a motion for injunction. To file an injunction, Adam and Steve must first establish that they have standing. Then they must establish that [1] there is a substantial likelihood of success on the merits [2] that the plaintiff will suffer irreparable injury if the injunction does not issue [3] that the threatened injury outweighs whatever damage the proposed injunction may cause a defendant and [4] that the injunction will not be adverse to the public interest. Brenner v. Scott, 999 F. Supp. 2d 1278, 1291 (N.D. Fla. 2014) order clarified, No. 4:14CV107-RH/CAS, 2015 WL 44260 (N.D. Fla. 2015). “Failure to show any of the four factors is fatal, and the most common failure is not showing a substantial likelihood of success on the merits.”

Since the Duval County clerk has stopped conducting all marriages (including marriages between heterosexual couples), Adam and Steve would likely not have a claim under the Equal Protection Clause. However the Supreme Court has recognized the right to marriage as a fundamental right and denying one’s fundamental rights constitutes a violation of Due Process.

In the current case, the defendants violate Plaintiffs fundamental right to marriage. Unconstitutional denial of fundamental rights in itself constitutes irreparable harm. While a state may override such right to serve a compelling state interest, defendants offer no sufficient justification for their cessation of marriages at the Duval County Courthouse. Freedom to choose one’s partner, whether of the same or opposite sex, does not harm others. Moral disapproval of same-sex marriage cannot sustain the defendants’ inaction. “Tolerating views with which one disagrees is a hallmark of civilized society”. Brenner v. Scott, 999 F. Supp. 2d 1278, 1291 (N.D. Fla. 2014) order clarified, No. 4:14CV107-RH/CAS, 2015 WL 44260 (N.D. Fla. 2015).

Additionally, we could look into the possibility of First Amendment protection. Even though there was no explanation given for ending the marriage ceremonies, if it is found that the ceremonies were stopped due to religious beliefs, it can be a violation of the Establishment Clause. The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The government can’t influence or support any certain religion.

IN THE COUNTY COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

ADAM UNCLE and STEVE FARREL

Plaintiffs,

Case No: 1

vs.

DUVAL COUNTY COURTHOUSE CLERK

OF COURT

Defendant,

COMPLAINT

Plaintiffs, Adam Uncle and Steve Farrel (“Plaintiffs”) hereby sue defendant Duval County Courthouse Clerk of Court.

Jurisdiction

1.This is an action involving a question of Florida Constitutional Law, which the circuit court has original jurisdiction over.

General Allegations

2.Plaintiffs are two individual males who reside in Duval County Florida and wish to get married in the Duval County Courthouse located in Jacksonville, Florida.

3.Until January 1, 2015, marriages were routinely performed in the Duval County Courthouse by the clerk of the court. The clerk of the court has advised that as of January 1, 2015 no further marriages will be conducted in the Duval County Courthouse. There were no reasons given to explain this decision.

5. Article I, Section 27 of the Florida Constitution recognizes marriage as a legal union between one man and one woman and maintains that no other legal union treated as marriage shall be valid or recognized.

6. Florida Statute 741.01 states that the circuit clerk of court or judge shall issue a marriage license if the proper documentation is provided and there is no impediment to marriage.

7. Florida Statute 741.04 conditions the issuance of a marriage license by the county court judge or clerk of the circuit court in Florida on one party being male and the other being female.

8. Florida Statute 741.212 prohibits the marriage of same sex individuals and does not recognize out of state marriage between same sex individuals within Florida.

9. The United States District Court for the Northern District of Florida barred enforcement of Article I, Section 27 of the Florida Constitution, Florida Statute 741.212, and Florida Statute 741.04, declaring these provisions against same-sex marriage unconstitutional. Brenner v. Scott, 999 F. Supp. 2d 1278, 1291 (N.D. Fla. 2014) order clarified, No. 4:14CV107-RH/CAS, 2015 WL 44260 (N.D. Fla. 2015).

Count I - Declaratory Relief Violation of Due Process

10.Paragraph 1 - 6 are restated and incorporated herein;

11.The 14th Amendment to the United States Constitution states: “. . . nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

12.Plaintiffs seek to get married pursuant to Florida Statute Section 741.01 and are able to comply with all requirements of the statute. There exists no impediment to the marriage. Nonetheless, the Defendant has denied plaintiffs the opportunity to be married in the Duval County Courthouse without any explanation and without providing plaintiffs any opportunity to respond to the Defendant’s reasoning.

13.It has been routinely held that marriage is a fundamental right and a liberty, which is protected by the 14th Amendment. Accordingly, Plaintiff’s have been denied that right and liberty without due process. Additionally, it has been routinely held that the deprivation of a fundamental right almost always causes irreparable harm to the injured party.

Prayer for Relief

12.Plaintiffs hereby request that the Court find that the Defendants actions have deprived the Plaintiffs of their liberty by not allowing them to get married in Duval County. Additionally, the Plaintiff’s request that the Court find that there was no due process provided by the Defendant and therefore the Defendant has violated the Plaintiffs 14th Amendment rights. The Plaintiffs request that the Court order the Defendant to marry them in Duval County Courthouse in compliance with Florida Statute Section 741.01 or alternatively, provide the Plaintiffs with proper due process as required by the 14th Amendment.

Respectfully Submitted,

___/s/______

Pasco East Team

Stetson University

1700 North Tampa Street

Tampa, FL 33602

Attorney for Plaintiffs

IN THE COUNTY COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

ADAM UNCLE and STEVE FARREL

Plaintiffs,

Case No: 1

vs.

DUVAL COUNTY COURTHOUSE CLERK

OF COURT

Defendant,

MOTION FOR INJUNCTION AGAINST DEFENDANT’S DENIAL OF MARRIAGE CEREMONIES

Pursuant to Florida Statute 741.01,Plaintiffs Adam Uncle and Steve Farrell, individually and on behalf of those similarly situated, move the court for an injunction requiring the defendants clerk of courts to issue marriage licenses to same-sex couples at the Duval County Courthouse in Jacksonville, Florida. The reasons in support are as follows:

1.There is a likelihood of success based on the merits for the reasons stated in the Complaint.

2.The Plaintiffs will suffer irreparable harm as they are unconstitutionally being denied a fundamental right by not being granted to opportunity to wed in the Duval County Courthouse.

3.The injury will outweigh the damage of this injunction because of the deprivation of a fundamental right and there was no reasonable explanation given as to why the ceremonies ceased.

4.This injunction will not be adverse to the public interest as it promotes social ties and the ban on same-sex marriages has been ruled unconstitutional.