When the 11th Circuit Court of Appeals denied Florida Attorney General Pam Bondi’s request to extend the stay banning gay marriage supporters rejoiced. But as expected Bondi immediately appealed to the Supreme Court where they too rejected Bondi’s argument.
“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,” Bondi wrote in a prepared statement. “Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”
But even with a ruling from the Supreme Court chaos and confusion still reigns throughout the state and so far no clerk has definitively said they will issue marriage licenses to gay couples on January 6.
That’s because lawyers for the Florida Court Clerks & Comptrollers association sent out a memo to county clerks warning them to not issue marriage licenses because if they did so they could be subject to prosecution. They believe the same-sex marriage ruling only applies to Washington County in the panhandle so, therefore once the stay is lifted, only that county may issue marriage licenses to gay couples.
The ACLU has a different opinion.
“That's where we just differ in our interpretation of the law. It's our position that when a federal judge declares a law unconstitutional, all public officials whether or not they are named in the case are required to stop enforcing the law," ACLU of Florida spokesman Baylor Johnson told The News Service of Florida.
At least one state prosecutor has already weighed in on the confusion saying he will not prosecute any clerks for giving marriages licenses to gay couples.
“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 Dave Aronberg, State Attorney, 15th Judicial Circuit in Palm Beach County. “We also do not prosecute unmarried heterosexual couples who co-habitate in violation of Florida law (See Section 798.02 of the Florida Statutes).”
Even with that protection Palm Beach County Clerk Sharon Bock still has not made a decision yet on what her office will do.
“We are waiting for clarification from the federal judge as to whether the lifting of the stay on January 6 is going to affect all Clerks, only the Washington County Clerk or only the parties in that particular lawsuit,” she said. “While other Florida lawsuits are working their way through our state court system, there have been no definitive decisions on the Clerks’ ability to issue same-sex marriage licenses. Our office will issue same-sex marriage licenses as soon as we are legally authorized by the courts to do so.”
Rand Hoch, a retired judge and founder of the Palm Beach County Human Rights Council, is challenging the clerks to go against their attorney’s advice and begin issuing marriage licenses anyway.
“PBCHRC is calling for a little ‘civil disobedience,’ in the spirit of our nation. PBCHRC hopes that Sharon Bock — and other clerks around the state — will disregard the advice of the Clerks' association and promptly start issuing marriage licenses as soon as the stay if lifted,” Hoch said. “I really can not see that state of Florida filing charges against Clerks who follow the United States Constitution as determined by the federal courts.”
Ron Saunders, the attorney for the Monroe County clerk’s office, is advising his clerk to adhere to the memo and wait it out.
Saunders said Monroe County is unique in this fight because a state judge in that county has also ruled the ban on gay marriage to be unconstitutional.
“We’re not disputing the fact,” he said, adding, “we were a reluctant defendant in that case.”
Even after the Supreme Court agreed to lift the stay he still was not prepared to give his clerk the go ahead to start issuing marriage licenses.
He said he understands there are different interpretations of the ruling such as from the ACLU but added, “the ACLU is not our counsel.”
Saunders is hoping there will be some additional clarification before January 5.
Harvey Ruvin, Miami-Dade County’s Clerk, had some harsh words for any clerk that chooses to not issue these licenses out of fear of prosecution.
“If fear of prosecution was any Clerk's sole reason for not issuing the licenses, I would regard that as rather shallow and gutless,” he said.
However he went on to say that it is not the role of clerk’s office to advocate anybody’s views and opinions or interpret the law.
“Our role is to be that one elected office; having custody of the Public's Information Asset Base, which our citizens need to be able to rely on our impartiality, neutrality and evenhandedness, even when we may have strongly held personal opinions,” Ruvin said. “Should…Clerks wish to break with that doctrine with regard to issuing marriage licenses, than how can the public continue rely on our not interjecting our personal views in the exercising of our many other critical ministerial responsibilities?”
As for Bondi, Hoch believes she is out of options. He does agree with her on one point though.
“I agree with Palm Bondi we need uniformity,” he said. “And there would be if she stopped all of the appeals. It’s up to her.”