Legal Fights Loom if Licenses Denied to Same-Sex Couples
With the U.S. Supreme Court clearing the way for same-sex marriages to start Jan. 6 in Florida, gay-rights groups Monday vowed continuing legal fights if county clerks do not issue marriage licenses.
Equality Florida, a prominent group supporting legalization of same-sex marriage, issued a news release Monday that said clerks "have a legal obligation to issue marriage licenses to same-sex couples --- or risk expensive litigation, including liability for damages and attorney fees."
The release largely was in response to a memo issued last week by attorneys for the Florida Court Clerks & Comptrollers that advised county officials statewide against issuing marriage licenses. The memo said a federal judge's decision striking down Florida's ban on same-sex marriage only applies to issuing licenses in the Panhandle's Washington County, where one of the gay couples involved in the challenge to the ban lives.
But Equality Florida said attorneys and legal organizations that support moving forward with same-sex marriage will provide pro-bono services to clerks concerned about the memo. Also, the group warned clerks that they will face legal battles if they do not issue marriage licenses to same-sex couples.
"Clerks can stand in the doorway and try to block equality or they can welcome gay couples who have waited for decades for this moment," Nadine Smith, chief executive officer of Equality Florida, said in prepared statement. "We expect every clerk to uphold their oath and protect the constitutional rights of gay couples seeking marriage licenses. No legal firm's memo overrides their clear legal obligation."
U.S. District Judge Robert Hinkle in August found that Florida's voter-approved ban on same-sex marriage is unconstitutional. Hinkle's ruling came amid appeals in similar cases from other parts of the country, and he placed a stay on his decision. That stay will expire at the end of the day Jan. 5.
Attorney General Pam Bondi sought an extension of the stay, but the U.S. Supreme Court late Friday turned down her request. In a prepared statement Friday night, Bondi said her goal was to have "uniformity throughout Florida" until final resolution of numerous challenges to the same-sex marriage ban.
"Nonetheless, the Supreme Court has now spoken, and the stay will end on January 5," Bondi said in the statement.
The memo last week for the Florida Court Clerks & Comptrollers was issued by four attorneys with the firm Greenberg Traurig. They advised clerks statewide not to issue marriage licenses "until a binding order is issued by a court of proper jurisdiction" and warned the clerks that they could be subject to criminal prosecution if they allow gay couples to wed.
"We realize that it may seem to many that Judge Hinkle’s federal district court ruling that Florida's same-sex marriage ban is unconstitutional and violates fundamental rights would permit all Florida clerks of court to lawfully issue marriage licenses to same-sex couples," the lawyers wrote. But, they also wrote, "our review of the law indicates that an order and injunction issued at the federal trial level is not binding on any person, including a clerk of court, who is not a named party in the action."
But the news release Monday from the groups supporting same-sex marriage blasted the memo.
"Any Florida clerk who refuses to follow the Constitution's command and who withholds marriage licenses from couples once the stay expires is on the wrong side of history and the wrong side of the law," Shannon Minter, legal director for the National Center for Lesbian Rights, said in a prepared statement.