Come Jan. 6, Florida may become the 36th state in which same-sex couples can go to their local county clerk's office and get a marriage license.
Or Florida might become Kansas — a Balkanized state where some county clerks issue licenses, some won't, and the whole issue of gay marriage is confused and unsettled.
The reason: A July memo from top law firm Greenberg Traurig advising its clients — the state association of county clerks — that if a state or federal judge threw out Florida's gay-marriage ban the ruling would apply only to the parties in the lawsuit — not the whole state.
"I don't want to say the memo is wrong, but the world changed since that memo was written," said Howard Simon, executive director of the ACLU of Florida, which sued the state on behalf of gay-rights group SAVE and same-sex couples legally wed elsewhere, but whose marriages are not recognized in Florida. Being sued: Florida's secretaries of health and management services and the clerk of the court in the Panhandle's Washington County.
The July 1 memo, from lawyers John Londot, Hope Keating and Michael Moody of Greenberg Traurig's Tallahassee office, advised the Florida Association of Court Clerks that "should a court declare the ban invalid, the obligations with respect to Clerks' offices depends upon whether they are named defendants in the litigation." Clerks who are not parties in the lawsuits, the lawyers said, could face "a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000" if they went ahead and married same-sex couples.
On Aug. 21, federal Judge Robert L. Hinkle ruled in favor of the ACLU, throwing out the gay-marriage ban in Florida's Constitution — approved by 62 percent of voters in 2008 — calling it "an obvious pretext for discrimination." He stayed his ruling until Jan. 5, leaving Florida Attorney General Pam Bondi time to appeal.
Five weeks later, Greenberg Traurig attorney Londot reiterated his earlier position, writing in an op-ed published Sept. 28 in the Tallahassee Democrat: "Many are surprised to learn that a detailed court order declaring a law unconstitutional does not do what it appears to do. But the fact remains there are only two courts in the country that have the actual power to invalidate a Florida statute: the Florida Supreme Court and the U.S. Supreme Court."
Eight days later, on Oct. 6, the Supreme Court settled the gay marriage issue in Utah, Oklahoma and Virginia, along with Wisconsin and Indiana, when it announced it would not hear appeals of federal court decisions allowing same-sex marriages in those states.
Kansas is in the same federal appeals circuit as Utah and Oklahoma. So on Oct. 9, Johnson County, outside Kansas City, began issuing marriage licenses to same-sex couples. The next day, the Kansas Supreme Court, at the request of the state's attorney general, blocked the granting of any more marriage licenses.
The ACLU then filed a motion in federal court and a district judge ruled in favor of gay couples. The stay was lifted, but not all clerks in Kansas have abided by the federal ruling, even though on Nov. 12 the U.S. Supreme Court allowed same-sex marriages to continue in Kansas while the state appeals.
In Florida, Attorney General Bondi appealed Hinkle's ruling to the 11th Circuit Court of Appeals in Atlanta. In November, she asked the court to extend Hinkle's stay until after the case is settled. On Tuesday, a three-judge panel from the 11th Circuit Court of Appeals told Bondi it wouldn't extend the stay.
Gay activists and legal experts now believe that on Jan. 6, the day after the stay expires, same-sex couples will be able marry in Florida and that gay couples who married in other states will have their unions recognized here.
Even the conservative Florida Family Policy Council in Orlando — the group that campaigned to enshrine the gay-marriage ban in Florida's Constitution — said in a news release that the Atlanta appeals court decision will likely ensure "that same-sex couples will be allowed to receive marriage licenses in the state the following day."
The clerks' association now wants to know whether to abide by the old Greenberg Traurig recommendation. The group on Thursday issued a brief "advisory bulletin" to all Florida clerks.
"We are reviewing the matter. We will provide that to our members as soon as possible," said Ken Kent, the association's executive director. "All clerks are watching this issue very closely. … We're relying on our general counsel to advise us. The issue is strictly an issue of law. There's not anything other than that. What's the lawful thing to do? The clerks are required to comply with the law."
Greenberg Traurig says it is reviewing its earlier recommendations, which some Florida clerks might use to avoid issuing marriage licenses to same-sex couples. "We are in the process of advising our client as to the potential impact of the recent denial by the Eleventh Circuit U.S. Court of Appeals of the State's motion to extend the stay previously entered by Judge Hinkle beyond its expiration date of January 5," Fred W. Baggett, managing shareholder of Greenberg Traurig's Tallahassee office and general counsel to the clerks' association, wrote to the Miami Herald.
Meanwhile, several clerks offices around the state say they're ready to start marrying same-sex couples.
"We are prepared for that and fully anticipating that if and when the law changes, we're ready to go," said Paul Donnelly, a spokesman for Orange County Clerk Tiffany Moore Russell.
For Donnelly and clerks in Broward and Monroe counties, the question is when, not if. Hinkle's order expires at the end of the day on Monday, Jan. 5.
"That decision hasn't been made yet as to when," Donnelly said, adding that it's unclear to his office whether marriages can begin at the end of the business day on Jan. 5 or right after midnight, on Jan. 6.
Monroe County Clerk Amy Heavilin hopes to become the first clerk in Florida to marry a gay couple, according to spokesman Ron Saunders.
"I'm sure she'd be open to being a historic clerk," Saunders said. "Amy Heavilin has personally approved us staying open longer than normal hours and she will be the one to perform the ceremony."
Whether the first marriages are performed on Jan. 5 or one minute after midnight, Broward Clerk Howard Forman said his Fort Lauderdale office is ready to go.
"There's a lot of pent-up demand," he said.
Contact Steve Rothaus at [email protected]iamiherald.com.