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Law firm tells clerks gay marriage order affects just one Florida county

Howard Simon, the executive director of the Florida ACLU, says the ruling covers the state.
Published Dec. 17, 2014

The fight to prevent gay marriage from becoming legal in Florida received a boost Tuesday from one of the state's most prominent law firms, which advised court clerks they could face misdemeanor charges if they issue marriage licenses to same-sex couples.

Greenberg Traurig, the law firm for the association representing Florida's 67 court clerks, warned that a federal judge's ruling overturning the state ban on gay marriage only applies to one Panhandle county, Washington County, the only place named in the lawsuit. According to the Florida Association of Court Clerks and Comptrollers, clerks in all other counties are not bound by U.S. District Judge Robert Hinkle's ruling in August that the gay marriage ban is unconstitutional.

If followed, the law firm's guidance could set Florida on the same path as Kansas, where multiple judges have dissolved the state's same-sex marriage ban, but some clerks in more rural areas have refused to issue licenses to gay couples.

Hinkle put a hold on his ruling until the end of the day Jan. 5, which the 11th U.S. Circuit Court of Appeals refused to extend. That led many gay marriage advocates to proclaim that licenses could be issued around the state beginning Jan. 6.

That's the way it should work, said Betsy White, one of several civil rights attorneys in Jacksonville representing two of the gay couples named in the federal lawsuit. She said the law firm's advice "is dead wrong," noting that it essentially encourages 66 separate lawsuits, one for each Florida county not named in the current suit. That could leave Florida taxpayers with a massive legal bill if the state loses.

"If certain clerks are going to take the position that they're not bound by Judge Hinkle's decision, then we'll be going back to the court and asking those parties to be included," White said.

Greenberg Traurig's guidance leaves court clerks in an unenviable position. If they issue marriage licenses to gay couples, they could technically face criminal charges. If they don't, they're opening themselves up to dozens of suits brought by organizations supportive of gay marriage, such as the American Civil Liberties Union.

Howard Simon, executive director of the ACLU of Florida, said it's highly unlikely any clerk would face arrest for issuing a marriage license to a gay couple. And it would be impractical to file identical lawsuits naming all 67 court clerks as defendants, he said.

"When a federal judge declares a law unconstitutional, all public officials should cease enforcing that law. Period," Simon said.

In Pinellas County, Clerk of Court Ken Burke said his office will proceed with plans to revise marriage license applications in case gay marriage becomes legal. But Burke said he will follow the law firm's advice and reject gay couples' applications. Doing otherwise would be "irresponsible," he said.

Hillsborough County Clerk of Court Pat Frank has said she is working on new marriage documents and revising procedures in anticipation of gay marriage becoming legal. She declined a request for comment Tuesday.

On Monday, Attorney General Pam Bondi asked the U.S. Supreme Court to intercede and extend the stay beyond Jan. 5, preventing marriages from taking place while Florida continues its fight to protect its ban on gay marriage. Bondi cited confusion over the impact of Hinkle's ruling and specifically referenced similar advice Greenberg Traurig dispensed in July.

"It's disingenuous of the state," said White, the Jacksonville lawyer. "The only confusion I see is from the defendants.''

Information from the Associated Press was used in this report. Contact Anna M. Phillips at aphillips@tampabay.com or (813) 226-3354. Follow @annamphillips.

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