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Federal judge: All Florida clerks have a duty to issue same-sex marriage licenses

Federal judge: All Florida clerks have a duty to issue same-sex marriage licenses


Updated: 10:00 p.m. EST

TALLAHASSEE, Fla. — A federal judge says that Florida’s county court clerks have a legal duty to issue marriage licenses to same-sex couples, but he has stopped short of ordering them to do so.

U.S. District Judge Robert Hinkle issued a ruling Thursday in Tallahassee federal court responding to requests to clarify his previous order that Florida’s same-sex marriage ban was unconstitutional. He stayed that order, but the stay is scheduled to expire at the end of the day Monday.

The association representing county clerks said the ruling applies only to Washington County, where a lawsuit filed by two men became a key basis for Hinkle’s order. Gay rights groups said Hinkle’s order applies statewide.

Hinkle warned Thursday that clerks who don’t start issuing the licenses when the stay expires could face future lawsuits or other legal consequences.

“History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case,” Hinkle wrote.

Hinkle said while his order doesn’t require a clerk to issue marriage licenses to same-sex couples, “the Constitution requires the clerk to issue such licenses.”

The National Center for Lesbian Rights and American Civil Liberties Union in Florida cheered Hinkle’s ruling Thursday.

“We expect all clerks to respect the ruling. But if not, we are committed to ensuring marriage equality in all 67 counties in Florida and we would like to hear from any couples that are wrongfully denied a license after the stay expires,” said Daniel Tilley, an attorney on LGBT rights for the ACLU of Florida.

The law firm behind the memo that created much of the confusion for court clerks — Miami-based Greenberg Traurig — reversed its recommendation Thursday after Hinkle’s clarification.

“We are pleased that Judge Hinkle has clarified his original order and the responsibilities of the clerks around the state,” said Hilarie Bass, Greenberg Traurig’s co-president. “The order states that the Constitution requires all clerks to issue marriage licenses to all applicants, regardless of gender.”

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