At the end of the day on Monday, January 5, marriage equality will arrive in Florida, but most of the state’s county clerks are still planning to deny same-sex couples marriage licenses. They believe that they are still bound to follow the law banning those licenses, even though it was struck down.
Despite the cavalcade of marriage equality in states across the country over the past year, Florida’s case still presents a unique set of circumstances. It will be the first time that a federal district judge’s decision will take indefinite effect despite opposition from the state. Neither the Eleventh Circuit Court of Appeals nor the Supreme Court felt it necessary to extend a stay on an August ruling by Clinton-appointee Judge Robert L. Hinkle overturning the state’s ban. That decision takes effect next week.
But most of the state’s clerks don’t believe that ruling applies to them. Of 53 who responded to an AP inquiry, 46 said they would not be issuing licenses to same-sex couples. This isn’t because they all oppose marriage equality, necessarily; many have expressed fear that they could be prosecuted for violating the state law, making them liable to penalty.
This legal confusion stems from the law firm Greenberg Traurig, which represents the state association of Florida Court Clerks & Comptrollers. Their attorneys informed the clerks that Hinkle’s ruling only applies to Washington County, where the couple who filed that complaint live, going so far as to suggest that the clerks could be subject to criminal prosecution for issuing licenses to same-sex couples outside that jurisdiction. In Florida, violating a statute makes one liable for a fine up to $1,000 and up to one year in jail. State Attorney Jeff Ashton has said he will not pursue any such prosecution, but some clerks also worry about retribution against their jobs from the governor.
Equality Florida and the National Center for Lesbian Rights have countered with their own legal memo, urging all clerks to issue marriage licenses to same-sex couples. The law has been declared unconstitutional, they argue, and cannot be enforced by anybody.
At the recommendation of Greenberg Traurig, Lora Bell, the Clerk of Court for Washington County, has filed an emergency request for clarification from Hinkle, hoping the judge will explain the scope of his ruling. Hinkle ordered other parties in the case to offer their own responses, due by Monday, before he issues any clarification. Still, he did reiterate his prior order with added emphasis, suggesting that there shouldn’t really be too much confusion about the fact that it applies to the entire state:
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.
Hinkle will likely clarify the intended scope of his ruling sometime in the coming week before it takes effect after the 5th.
Despite the legal chaos, some are eagerly awaiting the injunction’s effect. Orlando Mayor Buddy Dyer is planning to officiate a mass same-sex marriage on the morning of the 6th — provided the Orange County clerk is prepared to issue the licenses.