The association representing Florida's court clerks is "strongly encouraging" its members to grant marriage licenses to same-sex couples starting January 6th.
The move comes after Tallahassee-based U.S. District Judge Robert Hinkle issued a clarifying order stating that his decision rendering Florida's gay marriage ban unconstitutional applies statewide.
The legal counsel for the Florida Clerks and Comptrollers Association initially told clerks Hinkle's ruling applied to the same-sex couple who was part of the initial lawsuit, and would only bind the one clerk of court in Washington County. That memo set off a firestorm--with gay marriage advocates threatening to sue clerks who didn't grant licenses. The Washington court clerk asked Hinkle to clarify whether his ruling meant she had to issue a marriage license to the one couple or others who applied.
Hinkle said Thursday his ruling applies statewide and to all clerk of courts, and noted they could be sued if they did not comply.
In a statement, the association's Executive Director Kenneth A. Kent said, “given this development, we are strongly encouraging all Clerks to follow this clarification order and to begin issuing marriage licenses to same-gender couples on January 6, 2015.
“Given that Judge Hinkle, in this order, recognized that ‘reasonable people could debate who’ his original injunction bound, we are glad that we asked for this clarification to ensure that all of Florida's Clerks know what they are legally allowed to do as constitutional officers," Kent said. "All Clerks felt it their duty to move forward based on judicial authority, rather than on conflicting individual legal opinions which provided no protection as to the Clerks performance of the duty the law requires.”
The decisions by Hinkle and the clerks paves the way for same-sex couples to apply for marriage licenses starting January 6th. The stay Hinkle placed on his ruling finding Florida's 2008 gay marriage ban unconstitutional, expires January 5th at midnight.
For couples like Adrienne Seals and Jennifer Stubbs of Tallahassee, the news is a relief. Stubbs says even though she and Seals could have gotten married in another state, Florida is home.
“We want to be here and be able to have our jobs and everyone recognize our marriage in our home state,” she said.
The U.S. Supreme Court recently refused to extend a stay of Hinkle's ruling, and an appeal is still pending. Several other challenges to Florida's gay marriage ban are still making their way through state court. Legal experts say if the Eleventh District Court of Appeal were to rule against Hinkle's decision, couples married in the interim would still have their marriages recognized.
While Hinkle's order advises clerks to issue licenses, it's not a mandate. Opponents to same-sex marriage say Hinkle's ruling is being misinterpreted, but University of Richmond School of Law Professor Carl Tobias says the probability of opponents suing clerks over the issue is minimal.
"They don't have much of an argument," Tobias says, "but they could gum up the system." He says a judge would most likely toss out a lawsuit brought against a clerk of court for granting a marriage license to a same-sex couple.
"It's pretty much a done deal," Tobias says, when it comes to gay marriage in Florida.
