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Bay area court clerks will not issue same-sex marriage licenses Jan. 6

By Tony Marrero
Equality Florida CEO Nadine Smith challenges the clerks.

Pinellas Clerk of Court Ken Burke expects same-sex couples will show up to his office Jan. 6 to seek a marriage license.

At this point, they will leave empty-handed, and so will couples who try in Hillsborough, Pasco and Hernando counties.

"We're sympathetic but we have to follow what we know is the direction of the court, based on advice from our legal counsel," Burke said Monday, three days after a decision by the U.S. Supreme Court that gay marriage advocates say clears the way for clerks throughout the state to marry same-sex couples.

Gay-rights groups on Monday vowed to take legal action against Florida clerks who deny licenses to couples on Jan. 6. That's the day after a federal judge's stay on a ruling striking down the ban on gay marriage expires.

The U.S. Supreme Court's decision on Friday to turn down Florida Attorney General Pam Bondi's request to extend the stay hasn't changed the opinion of a law firm that advises court clerks statewide.

"The denial of a stay is not a ruling on the merits of the marriage-equality issue," Hilarie Bass, co-president for the law firm Greenberg Traurig, said in a statement. "Florida law continues to prohibit a Clerk from issuing a marriage license to a same-gender couple and provides criminal sanctions for doing so."

In August, U.S. District Judge Robert Hinkle 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.

Greenberg Traurig attorneys warned clerks in a memo last week that Hinkle's ruling only applies to the clerk in the rural Panhandle's Washington County, where one of the gay couples involved in the challenge to the ban lives. The memo advised clerks not to issue marriage licenses "until a binding order is issued by a court of proper jurisdiction," and warned that clerks could be subject to criminal prosecution if they allow gay couples to wed.

On Monday, the firm recommended 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," Bass said in the statement.

"We understand that action is currently under consideration," Bass said.

A message left for Bell was not returned Friday.

Equality Florida, a prominent group advocating for same-sex marriage, asserted Monday that clerks now have a legal obligation to issue marriage licenses to same-sex couples, "or risk expensive litigation, including liability for damages and attorney fees," the group said in a news release.

"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," Equality Florida CEO Nadine Smith said in the news release. "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."

Also Monday, Miami-Dade Clerk Harvey Ruvin, the defendant in a lawsuit by Equality Florida and six same-sex couples, filed a motion requesting that Florida's 11th Circuit Court clarify the details of the stay's expiration.

Hillsborough Clerk Pat Frank said she would gladly risk arrest on a first-degree misdemeanor and pay the $1,000 fine for issuing licenses to same-sex couples, but won't break the law because doing so would leave her vulnerable to suspension by the governor at a time when her office is in the midst of a reorganization.

Pasco County Clerk Paula O'Neil has a message on her website citing the law and legal advice as the reasons why she won't be issuing licenses unless she gets clarification from the court.

"We have attorneys for a reason," she said. "I have to rely on our legal counsel."

Hernando Clerk Don Barbee, a former assistant state attorney, called the legal advice "sound." He said he assumes his former boss, State Attorney Brad King, would probably not prosecute him for issuing licenses.

"But as long as that law exists, I don't feel comfortable" doing so, he said.

In an email to Burke and other clerks on Monday, Greenberg attorney Fred W. Baggett said his firm is creating a template document that clerks can file if they're sued for refusing to issue a license. The filing, Baggett wrote, would simply ask what the clerk's "duty is in the matter before the court."

"In other words, 'Judge, I'm not fighting this, just tell me what you want to me to do,' " Baggett wrote.

Burke said he agrees with that approach.

"Maybe," he said, "that's the way this gets decided."

Contact Tony Marrero at [email protected] or (727) 893-8779. Follow @tmarrerotimes.