Marriage equality advocates are preparing for a showdown with Florida court clerks when a stay expires next month of a federal judge’s ruling striking down the state’s same-sex marriage ban.
Last week, the U.S. Supreme Court refused to extend the stay, paving the way for same-sex marriages to begin in Florida on January 6.
But a memo issued earlier last week to clerks from the legal counsel to the Florida Association of Clerks and Comptrollers has created confusion by saying it believe’s the August ruling by U.S. District Judge Robert Hinkle that declared the state ban unconstitutional, only applies to one Panhandle county where the clerk was named as a defendant.
That memo, from the Greenberg Traurig law firm, has been blasted by state and national legal experts and includes an exaggerated warning to clerks that they could be fined or prosecuted if they issue marriage licenses to same-sex couples.
Clerks in at least 12 counties say they will not issue marriage licenses to same-sex couples on January 6. Check the list →
Legal experts who have worked to secure marriage in other states say the threat in the Greenberg Traurig memo is a strained interpretation that ignores legal precedent and common sense.
“A law firm memo does not override a federal judge’s order and the actions of the 11th Circuit and the U.S. Supreme Court,” said Nadine Smith, executive director of Equality Florida, a statewide LGBT advocacy group.
Shannon Minter, Legal Director for the National Center for Lesbian Rights (NCLR), advised that “any Florida clerk who refuses to follow the Constitution’s command and who withholds marriage licenses from couples once the stay expires is on the wrong side of history and the wrong side of the law.”
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“A discredited memo from a law firm won’t provide much protection against the risk of being sued for unconstitutional actions and being held liable for any damages — and attorney fees — incurred by couples as a result of withholding the freedom to marry. There is one Constitution, Florida is one state, and all Floridians are entitled to equal treatment throughout the state,” said Minter.
Even some State Attorneys have begun publicly dismissing the idea that a clerk would face charges for issuing marriage licenses to same-sex couples.
In a statement to the South Florida Sun Sentinel, David Aronberg, state attorney for the 15th Judicial Circuit in South Florida, said his office would not prosecute court clerks who issue marriage license to gay couples after the ban expires.
“We will not prosecute same-sex couples who express their lifelong commitment to one another through marriage, or the clerks of court who take part in the process,” said Aronberg.
That sentiment was echoed by Monroe County state attorney Catherine Vogel.
“I would probably agree with Palm Beach. It would be highly unlikely that we would be arresting the clerk of the courts,” said Vogel.
As of Monday, clerks in at least 12 counties — Brevard, Lee, Duvall, Manatee, Indian River, St. Lucie, Martin, Pinellas, Hillsborough, Pasco, Hernando and Nassau counties — have said publicly they will follow guidance in the Greenberg Traurig memo and not issue marriage licenses to same-sex couples on January 6.
But in a statement issued Monday, Equality Florida warned that “clerks who fail to heed the federal court ruling declaring the ban unconstitutional will end up in a costly legal battle.”
And on Saturday, Florida attorney Nancy Brodzki, whose client’s Vermont civil union was ordered recognized by the state of Florida in a divorce case, said she is “ready to file suit against any and all clerks of court who refuse to issue marriage licenses” to same-sex couples.
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“Clerks can stand in the doorway and try to block equality or they can welcome gay couples who have waited for decades for this moment,” said Smith. “We expect every clerk to uphold their oath and protect the constitutional rights of gay couples seeking marriage licenses. No legal firm’s memo overrides their clear legal obligation.”
In Kissimmee, Fla., near Orlando, Osceola County Clerk of the Courts Armando Ramirez said his courthouse would open at 12:01 a.m. on Jan. 6 to issue marriage licenses and possibly perform services.