Florida Clerks Face Legal Battles If They Refuse to Issue Marriage Licenses

Florida Clerks Face Legal Battles If They Refuse to Issue Marriage Licenses

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South Beach, Florida
South Beach, Florida/Travel Channel Photo

As of January 6, County Clerks across Florida have a legal obligation to issue marriage licenses to same-sex couples – or risk expensive litigation, including liability for damages and attorney fees.

In refusing to extend a stay that expires on January 5, the U.S. Supreme Court smacked down the last ditch effort by Attorney General Pam Bondi to block marriages. The highest court also put an end to the confusion generated by a memo to clerks from the legal counsel to the Florida Association of Clerks and Comptrollers.

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.”

A federal district court in Florida has now joined the 60 other state and federal courts -including four federal appellate courts – who over the past year have affirmed the freedom to marry and held the denial of marriage and full respect to be unconstitutional. The 11th Circuit refused to delay the ruling’s going into effect, and now so has the U.S. Supreme Court.

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.”

Legal experts who have worked to secure marriage in other states agree that the threat in the Greenberg Traurig memo is a strained interpretation that ignores legal precedent and common sense.

Even State Attorneys have begun publicly dismissing the idea that a clerk would face charges for issuing marriage licenses to same-sex couples. In a statement to the South Florida Sun Sentinel, David Aronberg, state attorney for the 15th Judicial Circuit in South Florida, said his office would not prosecute court clerks who issue marriage license to gay couples after the ban expires.

“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 Aronberg.

That sentiment was echoed by Monroe County state attorney Catherine Vogel.

“I would probably agree with Palm Beach,” said Monroe County State Attorney Catherine Vogel. “It would be highly unlikely that we would be arresting the clerk of the courts.”

Clerks were already preparing for marriage, adjusting forms and determining if they would open early. The Osceola County commission has already voted that the second-floor courthouse office where passports and marriage licenses are issued will open at 12:01 a.m. on January 6.

Even Florida AG Pam Bondi, who exhausted every legal avenue to block marriage equality, has stated her goal is to have the rules apply uniformly statewide.

“Tonight, the United States Supreme Court denied the State’s request for a stay in the case before the 11th Circuit Court of Appeals,” Bondi said. “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.”

Judge Hinkle’s ruling is very clear: “The defendant Secretary of the Florida Department of Management Services and the defendant Florida Surgeon General must take no steps to enforce or apply these provisions on same-sex marriage: Florida Constitution, Article I/27; Florida Statutes 741.212; and Florida Statutes 741.04(1)…The preliminary injunction binds the Secretary, the Surgeon General, and their officers, agents, servants, employees and attorneys – and others in active concert or participation with any of them – who receive actual notice of this injunction by personal service or otherwise.”

In preparation for couples planning to wed on Jan 6, Equality Florida has set up an online clearinghouse at eqfl.org/marriage to keep people informed about what they need to know to get a marriage license, along with legal updates and other valuable information.

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