LGBTQ South Florida

Florida clerks warned: Criminal charges possible for issuing same-sex marriage licenses

Howard Simon, executive director of the ACLU of Florida.
Howard Simon, executive director of the ACLU of Florida. El Nuevo Herald File

Making the issue of gay-marriage in Florida even murkier, the state’s court clerks association notified members Tuesday they could be “guilty of a criminal act” if they issue marriage licenses to same-sex couples if a federal judge’s hold on same-sex marriages expires Jan.5.

“Florida’s Court Clerks & Comptrollers’ duty is to act in accordance with Florida law,” the association said in a statement. “Florida Statutes are unique in regard to prohibiting the issuance of a marriage license to a couple that is not a man and a woman, in that it provides that a Clerk who violates this prohibition is guilty of a criminal act and subject to a fine and/or imprisonment.”

The statement came after the association’s legal counsel, law firm Greenberg Traurig, warned that only the clerk in North Florida’s Washington County — specifically named in the federal gay-marriage lawsuit — would be bound by a ruling by U.S. District Judge Robert L. Hinkle of Tallahassee, who in August found the state’s gay-marriage ban unconstitutional.

Hinkle stayed his ruling until Jan. 5. Florida Attorney General Pam Bondi appealed to the U.S. 11th Circuit Court of Appeals in Atlanta, which denied Bondi’s request to extend the stay. On Monday, Bondi asked Supreme Court Justice Clarence Thomas, the justice over the southern U.S. circuit, to extend the stay.

Thomas on Tuesday afternoon gave plaintiffs in the case until 5 p.m. Thursday to respond, reports SCOTUSblog.

If the stay expires, same-sex couples are expected to seek marriage licenses on Jan. 6. All Florida clerks who are not parties in the federal lawsuit 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 issue the licenses, according to Greenberg Traurig.

The federal case was brought by the ACLU of Florida on behalf of LGBT-rights group SAVE and eight same-sex couples suing to have their out-of-state marriages recognized in Florida.

Howard Simon, executive director of the ACLU of Florida, said in a statement Tuesday he disagrees with Greenberg Traurig’s interpretation.

“When a federal judge declares a law unconstitutional, all public officials should cease enforcing that law. Period,” Simon said. “Let’s leave the legalistic hypotheticals for the law school classroom and look at the practical reality: Are local officials seriously preparing to arrest and criminally charge Miami-Dade Clerk Harvey Ruvin for enforcing a federal judge’s order? That’s preposterous.” (Ruvin has not said whether his office would issue same-sex marriage licenses if the stay ends.)

Simon also said that whether or not clerks issue same-sex marriage licenses in Florida has nothing to do with recognizing the out-of-state marriages of other gay couples.

“There is no question that the marriages of all Floridians that were performed in other states or other countries must be legally recognized when the stay is lifted,” he said.

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