County clerks in Florida don’t know what to do about the recent SCOTUS ruling. (Photo by Jess Liotta and Colin Liotta)
By Ashley Lopez
Florida Center for Investigative Reporting
Even though a recent ruling from the Supreme Court of the United States opens the door for gay marriage in the Sunshine State starting Jan. 6, same-sex marriage might still be rare in Florida.
That’s because there is confusion over whether rulings from federal courts striking down the state’s gay marriage ban apply to the one county that was a party in the lawsuit or all 67 counties in Florida.
The Miami Herald reported following the SCOTUS decision,
Same-sex marriage will begin Jan. 6 in Florida — the U.S. Supreme Court on Friday evening denied Florida Attorney General Pam Bondi’s request to Justice Clarence Thomas that he extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples.
“The application for stay presented to Justice Thomas and by him referred to the Court is denied,” the Supreme Court announced Friday night, allowing Florida to become the 36th state, plus the District of Columbia, to recognize same-sex marriage.
In a statement Friday night, Bondi conceded: “Tonight, the United States Supreme Court denied the State’s request for a stay in the case before the 11th Circuit Court of Appeals. Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage. Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”
The case, however, isn’t over. Legal arguments haven’t been heard before the 11th Circuit, which hasn’t ruled on the merits of the case.
One of the other issues standing in the way of gay marriage throughout the whole state is varying legal opinions about whether county clerks must adhere to state law or new federal court rulings.
A law firm contracted by Florida’s Association of Clerks and Comptrollers advised the state’s 67 county clerks to not issue same-sex marriage licenses starting Jan. 6 because they could face misdemeanor charges.
The joint Bureau of E.W. Scripps / Tampa Tribune in Tallahassee reported that as a result of that legal memo, many county clerks have announced they would not issue licenses to gay couples.
Local clerk of courts offices across the state say they will not begin issuing same-sex marriage licenses, despite a U.S. Supreme Court ruling that paved the way for same-sex weddings to begin Jan. 6.
The local clerks hesitant to issue same-sex marriage licenses are relying on a legal memo from Greenberg Traurig, a law firm that represents the Florida Association of Clerks and Comptrollers. In that memo, the firm’s attorneys say that clerks could still face prosecution for issuing same-sex marriage licensees “until a binding order is issued by a court of proper jurisdiction.”
…Clerks in at least St. Lucie, Orange, Indian River, Martin and Lee Counties have already said they will not issue same-sex marriage licenses next week because of Greenberg Traurig’s memo.
“I am very empathetic, and I don’t have any problem with issuing same sex marriage licenses,” said Lee County Clerk Linda Doggett. “But I do have a problem with not following the law.”
But gay rights activists said that county clerks are more likely to face lawsuits from couples seeking marriage licenses than they are likely to get prosecuted by the state.
In fact, the state’s leading gay rights organization, Equality Florida, warned county clerks that they would face legal challenges if they denied gay couples the right to marry in their respective counties.
Equality Florida also claimed the legal memo sent to clerks was wrong. According to the group’s press release, “that memo by a Greenberg Traurig attorney 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 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 Nadine 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 the hours following the SCOTUS decision, law firms, private attorneys and legal organizations have committed to providing pro bono legal counsel to any Clerks who are concerned about the memo. Attorneys also issued a stern warning: Clerks who fail to heed the federal court ruling declaring the ban unconstitutional will end up in a costly legal battle.
“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,” said Shannon Minter, Legal Director for the National Center for Lesbian Rights. “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.”
Some state prosecutors have said they won’t go after clerks in the state if they do start issuing same-sex marriage certificates.
Because the underlying case still isn’t resolved, though, legal issues surrounding gay marriage in Florida are likely to drag out.