Florida Clerks of Court Will Break the Law if They Issue Same-Sex Marriage Licenses, Law Firm Warns

As expected, the powers-that-be in Florida are doing all they can to halt same-sex marriages from being allowed come January. This even after the news earlier this month that a Judicial Circuit of Florida Judge denied Attorney General Pam Bondi's request for an extended stay on a federal judge's ruling that Florida's ban on same-sex marriage is unconstitutional. Many legal experts have opined that LGBT couples who wish to wed will have the permission to do so when the stay expires in early January.

Bondi has now filed a motion to the U.S. Supreme Court asking for an emergency stay until the legality can be clarified. Her moves comes after a law firm has come out and publicly stated that any county clerks of court in the state who issue a marriage license to a gay couple will be breaking the law.

That's exactly what Tallahassee-based law firm Greenberg Traurig did in a memo.

See also: Pam Bondi Asks U.S. Supreme Court to Block Florida Gay Marriage

The law firm, which represents the Florida Association of Court Clerks and Comptrollers, sent out the memo back in July, but recently updated it, saying that anyone that issues a marriage license to an LGBT couple, even for after January 6, will be committing a misdemeanor that would be punishable of up to one year in county jail.

The law firm was issuing advice for county clerks who need to know how to proceed regarding the issuing of marriage licenses should gay couples apply. Greenberg Traurig advised that the federal judge's ruling would not extend to all counties in the state and would not be a free-for-all for gays to go ahead and marry.

"Their legal position is that the district where the court made the ruling is only binding to the one county where the original ruling was made," says Sasha Westerman-Keuning, an LGBT immigration attorney that also specializes in same-sex marriage. "I think it's a very conservative stance to send out and make public in a memo."

Though Westerman-Keuning says she sees the law firm's legal interpretation, she tells New Times that things could get messy, legally speaking, if they pursue legal action on county clerks of court across the state come January.

"It would be a real abuse of power if they started criminal prosecutions over this," she says.

But the memo is already creating a ripple effect. According to the Orlando-Sentinel, the Osceola County Commission voted on Monday to open the Kissimmee clerk's office one minute after midnight on January 6 -- when the stay expires -- in order to allow same-sex couples to get marriage licenses. But, after the Greenberg Traurig memo came out, the Osceola clerk reversed course on Tuesday.

"According to the advisory, I would be subject to criminal penalties if I issue a marriage license to a same-sex couple," the clerk said via the Sentinel.

Westerman-Keuning noted that, even if Bondi drops her appeal and marriages are allowed on January 6, LGBT couples wanting to get married will need to go through the state's required marriage course, which has never catered to gay couples.

Either way, Westerman-Keuning says, Greenberg Traurig's memo is only one interpretation of the law, which means the issue could keep having to be fought over in Florida courts. Maybe even the Supreme Court, which is what Bondi has wanted all along.

Whether or not clerks will actually be prosecuted is something we're all just going to have to wait and see.

"I'm not sure there is a right answer to all this," Westerman-Keuning concedes. "It may have to play out in court."

Here's a quick statement on the situation from Howard Simon, Executive Director of the ACLU of Florida:

"When a federal judge declares a law unconstitutional, all public officials should cease enforcing that law. Period.

"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 county clerks for enforcing a federal judge's order? That's preposterous.

"It's important to note that while the State claims that there is lack of clarity as to which clerks must issue marriage licenses, there is no question that the marriages of all Floridians that were performed in other states or other countries must be legally recognized when the stay is lifted.

"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?

"Attorney General Bondi has already harmed enough Floridians with her dead-end fight for this hurtful and unconstitutional law. Does she really want to drag all the county clerks into this too? We agree with the Attorney General that the courts, the country, and the state of Florida need uniformity. She can help achieve that by dropping the appeals and saying that a judge's ruling definitively striking down Florida's ban means that all Florida couples deserve the rights and protections that come with marriage.

"Or, if the Supreme Court declines to extend the stay, then we would expect her, in the interest of uniformity, to announce that we will have one law governing the whole state on January 6th and that marriages can go forward while her appeal winds its way through the courts."