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Florida county clerks waver over issuing same-sex marriage licenses

Florida county clerks waver over issuing same-sex marriage licenses

As previously reported, same-sex marriages are due to begin in Florida on 6 January. However, a legal memo has now prompted confusion among county clerks.

Earlier this month, the US Eleventh Circuit Court of Appeals announced that it was declining to extend a stay on same-sex marriages in the Sunshine State.

Then, on Friday, the Supreme Court backed this decision, ruling that a stay on same-sex marriages would come to an end on 5 January.

This should pave the way for gay marriages to begin in the state, right? Unfortunately not, as a curveball has been thrown into the mix.

Law firm Greenberg Traurig represents the Florida Association of Court Clerks. The firm has advised that only the clerk in Washington County, North Florida – which was the county named in Florida’s federal same-sex marriage lawsuit – will be bound by the ruling.

It has gone so far as warning those county clerks not mentioned in the lawsuit that they risk facing ‘a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000.’

Unsurprisingly, this has sent jitters around the state’s 67 other county clerks.

Yesterday, typifying the response of some, the Manatee County Clerk said that he would not be issuing licenses. According to the Bradenton Herald, R.B. "Chips" Shore said that this was precisely because court permission to do so had only been given to one north Florida county.

‘Our counsel has advised us that the situation has not changed, that, according to the federal judge’s ruling, only Washington County will legally be able to issue these licenses on Jan. 6.

‘As to what I am going to do, I at this time will follow our state counsel’s advice, but remember one thing: The marriage license statute allows county judges to issue marriage licenses, too, so I cannot speak for what they might do.

‘It’s a real Catch-22 for us. We’re damned if we do and damned if we don’t.’

The legal warning has angered some same-sex marriage campaigners.

‘A law firm memo does not override a federal judge’s order and the actions of the 11th Circuit and the U.S. Supreme Court,’ said Nadine Smith, executive director of Equality Florida.

‘They’re actually exaggerating the risk on one hand and ignoring the extraordinary risk clerks will face in lawsuits and damages for violating the constitutional rights of every couple they turn away.’

Her view was echoed by Shannon Minter, legal director for the National Center for Lesbian Rights, who was similarly critical of the law firm’s instructions.

Speaking about Judge Robert Hinkle’s original order to overturn the state’s ban on same-sex marriage, Minter said that it was, ‘worded not just to the named defendants but to anyone acting in concert or in participation with them.

‘That applies to all state and local officials who have any role in enforcing Florida’s marriage laws.’

On Monday, Greenberg Traurig was standing by its advice. In a statement, Hilarie Bass, the firm’s co-president, said; ‘The denial of the stay by the U.S. Supreme Court does not change our advice to the Florida Association of Court Clerks & Comptrollers that Judge Hinkle’s ruling only applies to the Washington County clerk.

‘The denial of a stay is not a ruling on the merits of the marriage-equality issue.

‘Florida law continues to prohibit a clerk from issuing a marriage license to a same-gender couple and provides criminal sanctions for doing so. Our legal advice cannot be affected by assurances that certain law enforcement authorities might not take action to prosecute violators of the criminal statute.’

One county clerk who had indicated that she would not be taking the firm’s advice is Flagler County Clerk, Gail Wadsworth. She told that she was intending to issue marriage licenses.

‘It may apply only to Washington County. I hope not … I hope they don’t do something in one piece of Florida and not another, let’s let the rule be uniform. But I don’t know, I’m not a lawyer’.

Other county clerks in Florida are currently awaiting further instruction before deciding whether they will issue marriage licenses to same-sex couples.