THE CAPITAL, TALLAHASSEE, December 16, 2014..........Even if a court ruling declaring Florida's ban on same-sex marriage unconstitutional takes effect next month, gay couples outside of a sparsely populated Panhandle county might not be able to get marriage licenses.
Lawyers for the Florida Court Clerks & Comptrollers have advised county officials statewide not to issue marriage licenses "until a binding order is issued by a court of proper jurisdiction" and warned the clerks that they could be subject to criminal prosecution if they allow gay couples to wed.
The memorandum, written by four Greenberg Traurig lawyers acting as the clerks' general counsel, is the latest complication after a seeming victory for gay-rights advocates when a federal judge in August decided that Florida's voter-approved ban on same-sex marriage is unconstitutional.
U.S. District Judge Robert Hinkle at the same time imposed a stay on his ruling to give time for the U.S. Supreme Court to consider three other gay marriage cases. The court has since declined, and the stay is set to expire "at the end of the day on Jan. 5."
On Monday, the same day the Greenberg Traurig lawyers issued the memo, Attorney General Pam Bondi asked the U.S. Supreme Court to intervene and keep the ban in place while the appeals in the Florida case run their course, a request rejected by the 11th U.S. Circuit Court of Appeals earlier this month.
"We realize that it may seem to many that Judge Hinkle’s federal district court ruling that Florida's same-sex marriage ban is unconstitutional and violates fundamental rights would permit all Florida clerks of court to lawfully issue marriage licenses to same-sex couples," the lawyers wrote in the Monday memo, an update of an analysis the clerks' lawyers provided in July.
But, the lawyers wrote, "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."
Hinkle's ruling only applies to the Panhandle's Washington County, where one of the gay couples in the lawsuit resides, Greenberg Traurig lawyers Fred Baggett, John Londot, Hope Keating and Michael Moody wrote.
The lawyers also cautioned that the clerks could be on the hook if they allow same-sex unions because, under Florida law, it is a misdemeanor to violate the statute regarding issuance of marriage licenses, punishable by up to $1,000 in fines and up to a year in jail.
"Until such time as there is a binding appellate ruling … we are constrained to advise that despite the order, clerks remain exposed to Florida's apparently unique criminalization of the issuance of marriage licenses to same-sex couples," the six-page memorandum concludes.
But the American Civil Liberties Union of Florida, which represents some of the plaintiffs in the case, contends that Hinkle's ruling is binding on all of Florida's 67 clerks.
"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 said.
Bondi, who asked the U.S. Supreme Court to extend the stay to avoid "confusion" for the clerks on Jan. 6, could resolve the issue by dropping the state's appeals, ACLU of Florida Executive Director Howard Simon said in a statement after the clerks released the memorandum.
"Let’s leave the legalistic hypotheticals for the law school classroom and look at the practical reality: Are local officials seriously preparing to arrest and criminally charge Miami-Dade Clerk Harvey Ruvin for enforcing a federal judge's order? That’s preposterous," Simon said.
Simon also noted that, whether the clerks issue marriage licenses or not, Hinkle's ruling would also require Florida to recognize same-sex marriages performed in other states.
It is unclear if all of the state's clerks will abide by the memorandum.
But if the Supreme Court does not grant Bondi's request to extend the stay, more litigation is likely. Gay-rights advocates have been preparing to line up in courthouses throughout the state to apply for marriage licenses on Jan. 6. If the clerks refuse to grant those licenses outside of Washington County, the courts would be the couples' only remedy. One possible legal avenue would be for the ACLU to ask Hinkle for clarification of his August order.
"Attorney General Bondi says that she wants uniformity, but the path she's pushing our state down is creating exactly the opposite situation. Does she want Florida taxpayers to foot the bill for 67 different lawsuits challenging a law that has already been declared unconstitutional, all ending in the same outcome?" Simon said.
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