Lawyers for the Florida Association of Court Clerks and Comptrollers said in a statement Tuesday that Washington County is the only place named in the federal lawsuit. Clerks in all other counties, according to the association, aren’t bound by U.S. District Judge Robert Hinkle’s ruling in August that the gay marriage ban is unconstitutional.
In addition, the association said Florida’s same-sex marriage ban enacted by voters in 2008 is unique because clerk employees who issue a marriage license to a gay couple without authorization could face misdemeanor criminal charges.
“At this time of uncertainty, the Florida Court Clerks & Comptrollers have been advised by the association to follow the advice of our legal counsel and not issue same-sex marriage licenses until a binding order is issued by a court of proper jurisdiction,” said Kenneth A. Kent, executive director of the clerks association.
Hinkle put a hold on his ruling until the end of the day Jan. 5, which the 11th U.S. Circuit Court of Appeals refused to extend. That led many gay marriage advocates to proclaim that icenses could be issued around the state beginning Jan. 6.
The clerk’s association legal counsel, the Greenberg Traurig law firm, said in a memo that is not the case because only the Washington County court clerk is named in the decision.
“Our review of the law indicates that an order and injunction issued at the federal trial level is not binding on any person, including a clerk of court, who is not a named party in the action,” the memo says. “Nor does such a ruling bind any other court.”
Howard Simon, executive director of the American Civil Liberties Union of Florida, said it’s highly unlikely any clerk would face arrest for issuing a marriage license to a gay couple. He also said it would be impractical to file identical lawsuits naming all 67 court clerks as defendants.
“When a federal judge declares a law unconstitutional, all public officials should cease enforcing that law. Period,” said Simon, whose organization filed the federal lawsuit challenging the same-sex marriage ban.
Article continues belowAttorney General Pam Bondi has asked the U.S. Supreme Court to extend Hinkle’s stay past Jan. 5, citing confusion over the impact statewide of his ruling. The high court has not yet responded to the state’s petition. The state also wants the 11th Circuit to overturn Hinkle’s ruling, while Simon and other gay marriage proponents say Bondi should simply drop all appeals.
The just-elected clerk in Washington County, Lora Bell, was not immediately available Tuesday to discuss the issue, according to her assistant.
Judges in four South Florida counties have also declared the gay marriage ban unconstitutional, but all of those decisions have been appealed and remain on hold. One of those, a lesbian couple’s divorce in Broward County, is scheduled to be finalized Wednesday.
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