cityXtra Magazine

Law firm to Florida court clerks: Issue same-sex marriage licenses and you risk arrest

Gay rights activists were ecstatic: Come Jan. 6, they thought, Florida same-sex couples would be lining up at courthouses around the state to get married.

But that is not what the people who issue marriage licenses in Florida — county clerks of court — say.

They are trying to determine whether a Tallahassee law firm is right when it says that every Florida clerk, except the one in Washington County, would be committing a crime if he or she issues marriage licenses to same-sex couples.

The firm of Greenberg Traurig, legal counsel to the Florida Association of Court Clerks and Comptrollers, this week updated a memo it sent July 1 that says the same thing: If you issue a marriage license to two people of the same sex, you've committed a first-degree misdemeanor and could spend a year in the county jail.

In a statement Tuesday, Executive Director Kenneth A. Kent said, "At this time of uncertainty, the Florida Court Clerks & Comptrollers have been advised by the association to follow the advice of our legal counsel and not issue same-sex marriage licenses until a binding order is issued by a court of proper jurisdiction."

"I think they're dead wrong," said Elizabeth White, one of the Jacksonville lawyers representing Stephen Schlairet and Ozzie Russ, a same-sex Washington County couple who, along with several others, convinced U.S. District Judge Robert Hinkle in Tallahassee to overturn Florida's ban on same-sex marriage in August.

He imposed a stay, however, to give the state time to appeal. Two weeks ago, when the 11th Circuit Court of Appeals rejected the state's request to extend the stay beyond Jan. 5, gay rights activists began planning celebrations for what many believe will be a flood of same sex marriage applications Jan. 6.

Florida Attorney General Bondi on Monday asked the U.S. Supreme Court to extend the stay. Daniel Tilley, an attorney for the American Civil Liberties Union who represents several gay and lesbian couples in that case, pointed out that since October, the high court has rejected every similar appeal.

In Central Florida, some people have already begun to preparing for same-sex marriages on Jan. 6.

The Osceola County Commission voted Monday to open the clerk's office in Kissimmee from 12:01 a.m. to 2 a.m. that day to allow same-sex couples to get licenses.

But Osceola Clerk Armando Ramirez said Tuesday he was not sure whether he would issue licenses then.

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

"I am leaning toward doing the right thing," he said. "I believe marriage is a legal agreement binding upon two parties. It does not specify that it has to be a man and a woman."

Orange County Clerk Tiffany Moore Russell did not return phone calls seeking comment.

Seminole County Clerk Maryanne Morse said last week that because she was not specifically named in the Tallahassee federal suit, she believes the ruling does not apply to her.

Lake County Clerk Neil Kelly said he is not sure what to do but is relying on legal advice from Greenberg Traurig.

Orange-Osceola State Attorney Jeff Ashton's office did not say whether he would prosecute Moore Russell, Ramirez or any of their employees should they issue the licenses.

In Seminole-Brevard, State Attorney Phil Archer hinted that he would prosecute no one. In a prepared statement, he said the issue "would be best addressed in civil court."

Michael P. Allen, an associate dean at the Stetson University College of Law, said the Greenberg Traurig firm is technically right: Hinkle's order applies only to the defendants named in the suit — Florida's surgeon general, who records an individual's marital status on death certificates; Florida's secretary of the Department of Management Services, who administers state employee retirement benefits; and the clerk of the Panhandle County of Washington, the one who would not give Schlairet and Russ a marriage license.

But Allen said it's also bad public policy. Clerks who follows it, he said, will likely be sued for violating the constitutional rights of any same-sex couple that applies for a marriage license on Jan. 6 or thereafter and is denied.

"It is just going to create a tremendous amount of litigation, lawsuit after lawsuit," Allen said.

White, the Jacksonville lawyer involved in the Tallahassee federal suit, said her firm would move aggressively against clerks who do not issue marriage licenses.

"On Jan. 6 if (same-sex) couples are denied marriage licenses, we will be knocking on courthouse doors," she said.

In most other places where a ban on gay marriage has been ruled unconstitutional, state and local officials have chosen not to dig in and engage in a county-by-county fight, Allen said.

"Most states have not done that, frankly, because it seems pretty mean-spirited," he said.

In 35 states, same-sex couples now have the right to marry.

In 2008, 62 percent of Florida voters approved a constitutional ban on same-sex marriage. But since July 17 four state trial judges — all in South Florida — have declared it unconstitutional. Those are in addition to the Tallahassee federal case that created the looming Jan. 5 deadline.

Most of those state court rulings, though, have been stayed while Florida Attorney General Pam Bondi pursues appeals.

And even though judges in Monroe, Dade, Broward and Palm Beach counties have independently found Florida's ban on same-sex marriage to be unconstitutional, clerks in those counties, too, would be subject to arrest, according to Greenberg Traurig, should they issue marriage licenses to gay and lesbian couples on Jan. 6.

That's because they were not specifically named in the North Florida case decided by Judge Hinkle.