Equality Florida and the National Center for Lesbian Rights contend that Florida Clerks of Court are free and clear to issue marriage licenses to same-sex couples on Jan. 6, after a stay on a ruling declaring Florida’s gay marriage ban unconstitutional expires.
The organizations have issued a memo to all 67 state clerks of court explaining why the original ruling paves the way for marriage and no further clarification is needed.
The confusion stems from Florida’s county clerks of court getting conflicting information as to what is legal and proper come Jan. 6. Right now, most clerks say they won’t issue licenses after the Florida Clerks and Comptrollers Association has advised twice that clerks outside of Washington County – where Hinkle made his ruling – can face criminal prosecution if they issue licenses Jan. 6.
The key arguments are: clerks are among the parties included in the ruling, government officials may follow a federal district court ruling, and clerks don’t realistically face criminal charges should they issue licenses.
The memo also argues that the memo advising clerks not to issue licenses “incorrect in key respects, including in failing to acknowledge that: (1) a federal court order is binding not only on the parties to the case, but also on all “persons who are in active concert or participation with” any of the parties; (2) non-party government officials may choose to comply with a federal district court ruling that a law is unconstitutional, even when they are not technically bound by the ruling; (3) an unconstitutional law is void and unenforceable; and (4) county clerks who follow Judge Hinkle’s ruling could not be held criminally liable for doing so because they would not have the required specific criminal intent.”
Read the full memo: Memo to Florida Clerks 12-23-14-FINAL
Orange and Osceola Counties State Attorney Jeff Ashton announced his office will not prosecute Clerks of Court who issue marriage licenses Jan. 6, 2015. Additionally, Hinkle previously stated 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.