What’s a clerk to do?
After Florida voters approved in 2008 a constitutional amendment prohibiting same-sex marriage, the issue started appearing before the courts as gay couples challenged the validity of the ban based on civil and equal rights issues.
In a case involving plaintiffs in Washington County, U.S. District Judge Robert Hinkle ruled in August that Florida’s ban on same-sex marriage, which was approved by voters in 2008, is unconstitutional. He stayed his ruling to give the U.S. Supreme Court the opportunity to rule on the question. The highest court declined in October to take up the issue.
Hinkle’s stay is set to expire at the end of the day on Jan. 5.
That puts Florida’s 67 county clerks of court in the position of whether to follow the regulations that have been in effect for more than a decade or change state policy based on a ruling by a federal judge.
“It’s unique,” said Sean Hudson, spokesman for Florida Court Clerks & Comptrollers, the state association of clerks of court.
The association’s attorneys, Miami-based Greenberg Traurig, advised Florida’s court clerks as a group are not bound by Hinkle’s ruling, since they were not individually named in the Washington County lawsuit.
The attorneys also said issuing same-sex marriage licenses would place clerks at risk of criminal violation of Florida’s same-sex marriage ban – if and until the ban is invalidated by a Florida district court of appeal (absent inter-district conflict), the Florida Supreme Court, or the U.S. Supreme Court.
In Florida, it is a misdemeanor to violate the statute regarding issuance of marriage licenses, punishable by a maximum fine of $1,000 and up to one year in jail.
Kenneth Kent, executive director of the association, told members their duty is follow Florida law.
“It is not within their (members’) purview to interpret the law or act without a full understanding of what the law does and does not allow,” he said in a statement.
For the counties that comprise the 4th Judicial Circuit, there will be no policy change Jan. 6.
Duval County Clerk of Court Ronnie Fussell was not available for comment, but his office issued a statement saying it would not issue same-sex marriage licenses “until a binding order is issued by a court of proper jurisdiction.”
Justin Horan, general counsel for the Clay County clerk of court, said the office will abide by the position endorsed by the state association. He said it will be “business as usual” on Jan. 6.
The Nassau County clerk’s office also will be following the advice from the association, with no change in policy until a binding order is issued from a proper jurisdiction or Florida amends its constitution, said spokeswoman Liz Rodriguez.
“It’s our responsibility to follow the law. We will not be issuing licenses for same-sex couples,” she said.
On Monday, Florida Attorney General Pam Bondi asked the U.S. Supreme Court to maintain the ban while appeals run their course.
A similar request was rejected Dec. 3 by the 11th U.S. Circuit Court of Appeals.
Ellen Schmitt, president of the Jacksonville chapter of Parents and Friends of Lesbians and Gays, said the controversy over same-sex marriage is reminiscent of a similar societal issue more than 50 years ago when mixed-race couples were prohibited from marrying.
“PFLAG supports marriage equality throughout the country,” said Schmitt. “We feel it’s appropriate to recognize same-sex marriages and afford same-sex couples the same rights under the law afforded to mixed-gender couples.”