Clerks association attorneys still recommend clerks not issue marriage licenses

By : Jamie Hyman
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The attorneys who advise the Florida Clerks and Comptrollers Association are sticking to their guns.

Greenberg Traurig released a statement Dec. 22 reconfirming their advice that Florida Clerks of Court should NOT issue marriage licenses to same-sex couples Jan. 6, when a stay on same-sex marriage in Florida expires.

“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,” said Hilarie Bass, Greenberg Traurig Co-President. “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.

“We recommended on Monday that Washington County Clerk Lora Bell consider filing a motion for an emergency hearing seeking clarification from Judge Hinkle regarding the specific parties intended to be bound by his order.  We understand that action is currently under consideration.”

Federal Judge Robert Hinkle previously declared Florida’s ban on gay marriage unconstitutional and said same-sex marriage licenses could start being issued in the state after Jan. 5 unless the Supreme Court intervened. The Supreme Court said Dec. 19 it would not stand in the way.

On Dec. 16, the Florida Association of Court Clerks and Comptrollers originally warned that Hinkle’s ruling only applies now in Washington County, and clerks in other counties could face criminal charges if they issue licenses.

Since then, clerks in most Florida counties have either stated that they’ll hold off on issuing licenses until the Association updates their recommendation or a court order clarifies the issue.

There is still a chance that court order could pave the way for marriage Jan. 6.

Miami Dade Clerk Harvey Ruvin, the defendant in a lawsuit by the Equality Florida Institute and six same-sex couples fighting for marriage equality, filed a motion Dec. 22 requesting the 11th judicial circuit court clarify and expedite the details of the stay’s expiration.

“These conflicting opinions have created confusion among clerks of court as well as the public, including same-sex couples in Florida who are planning their weddings and eager to obtain marriage licenses after Jan. 5,” Ruvin’s motion reads.

A statement released to media from the state attorney’s office, about whether they’d prosecute clerks who issue licenses to same-sex couples, didn’t shed much light:

The State Attorney does not announce in advance which cases he will prosecute. If he receives a complaint, that complaint will be investigated and evaluated, as other complaints are, and a charging decision will be made at the appropriate time.

Ruvin’s motion discusses how Florida clerks are “duty-bound to remain neutral in this case,” but explains that clerks offices have been “inundated, however, with telephone calls and visits from couples seeking clarity as to their ability to obtain a marriage license after January 5.

Now, would the court’s response apply to just Miami-Dade county, or will it clarify things statewide? Again, the answer is unclear at this time. The specific request is just for Miami-Dade, but it’s possible the judge’s ruling could clear up the question for the whole state.

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