Leading LGBT activists and attorneys on Monday blasted a top Miami-based law firm for “an exaggerated warning” to county clerks that they could be fined or prosecuted for issuing marriage licenses Jan. 6 to same-sex couples.
“A law firm memo does not override a federal judge’s order and the actions of the 11th Circuit and the U.S. Supreme Court,” said Nadine Smith, executive director of Equality Florida, a major LGBT-rights lobbying group. “They’re actually exaggerating the risk on one hand and ignoring the extraordinary risk clerks will face in lawsuits and damages for violating the constitutional rights of every couple they turn away.”
Same-sex marriage is set to begin Jan. 6 in Florida, after the U.S. Supreme Court on Friday evening denied Florida Attorney General Pam Bondi’s request to Justice Clarence Thomas that he extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples.
On Aug. 21, U.S. District Court Judge Robert L. Hinkle of Tallahassee overturned Florida’s 2008 constitutional gay-marriage ban and stayed his ruling through Jan. 5, to give Bondi time to take the case to the U.S. Circuit Court of Appeals in Atlanta. The appeal still hasn’t been heard by that court, but on Dec. 3 three 11th Circuit judges told Bondi it would not extend Hinkle’s stay.
After the Supreme Court announcement Friday night, Bondi conceded in a statement that “the Supreme Court has now spoken, and the stay will end on Jan. 5.”
The hitch: Top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks, has advised them that only the clerk in Washington County, in rural North Florida — named in Florida’s federal gay-marriage lawsuit — would be bound by Hinkle’s ruling. All other Florida clerks who are not parties in the 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 went ahead and married same-sex couples, according to Greenberg Traurig.
Despite the Supreme Court announcement on Friday, Greenberg Traurig on Monday night stood by its original recommendation.
“The denial of the stay by the U.S. Supreme Court does not change our advice to the Florida Association of Court Clerks & Comptrollers that Judge Hinkle’s ruling only applies to the Washington County clerk,” Hilarie Bass, Greenberg Traurig’s Miami-based co-president, said in a statement. “The denial of a stay is not a ruling on the merits of the marriage-equality issue.”
Bass continued: “Florida law continues to prohibit a clerk from issuing a marriage license to a same-gender couple and provides criminal sanctions for doing so. Our legal advice cannot be affected by assurances that certain law enforcement authorities might not take action to prosecute violators of the criminal statute.”
At least one clerk, Linda Doggett of Lee County, said her office would abide by the Greenberg Traurig recommendation and not issue marriage licenses to same-sex couples on Jan. 6.
“Per an opinion recently issued by the Florida Court Clerks & Comptrollers’ legal counsel, the Florida constitutional ban still applies in most counties including Lee County making the issuance of same-sex marriage licenses illegal for our office. The recent decision only affects the clerk’s office named as a party in the lawsuit. Until a binding order is issued by a court of proper jurisdiction, the law is not changed,” Doggett said in news release Monday.
Shannon Minter, legal director for the National Center for Lesbian Rights, said Monday that Doggett is wrong, that Hinkle’s order “is worded not just to the named defendants but to anyone acting in concert or in participation with them. That applies to all state and local officials who have any role in enforcing Florida's marriage laws.”
Minter co-represents Equality Florida Institute and six same-sex couples who in January sued Miami-Dade County Clerk Harvey Ruvin to issue them marriage licenses. He says the Greenberg Traurig memo has “sowed needless confusion.”
Flagler County Clerk Gail Wadsworth told FlaglerLive.com, a nonprofit news website, that she and her deputy are ready to issue same-sex marriage licenses on Jan 6.
“It may apply only to Washington County. I hope not,” Wadsworth told FlaglerLive.com. “I hope they don’t do something in one piece of Florida and not another, let’s let the rule be uniform. But I don’t know, I’m not a lawyer.” Flagler County is north of Daytona Beach on Florida’s east coast.
South Florida clerks say they’re waiting for more direction before deciding what to do.
On Dec. 17, the Miami Beach City Commission unanimously passed a resolution urging Ruvin to disregard the Greenberg Traurig recommendation and “to begin issuing marriage licenses to same-sex couples following the expiration, on Jan. 5, 2015, of the stay of the ruling entered by the U.S. District Court.”
On Monday, Ruvin asked Miami-Dade Circuit Judge Sarah Zabel, who presided over the Equality Florida right-to-marry case and also found the state’s gay-marriage ban unconstitutional, whether she planned to lift the stay she imposed last July in that case.
Ruvin told the Miami Herald on Monday that Zabel has “already immunized us if we follow her order” and issue marriage licenses to same-sex couples.
Also Monday, the Washington County Clerk’s Office planned to ask Hinkle for clarification in the federal case, whether he intended only Washington County would be subject to his ruling.
Minter says the Greenberg Traurig recommendation “doesn’t make sense.”
“The memo to the clerks is incorrect,” Minter said. “It’s a classic case of missing the forest for the trees. In light of the overwhelming weight of national authority, the federal district court's ruling by Judge Hinkle and the 11th Circuit/Supreme Court denials of a stay, it is clear that clerks across the state and all state and local officials are legally bound to no longer enforce the discriminatory marriage ban once the stay expires at the end of Jan. 5.”
“The Greenberg memo focus on the entirely implausible threat of criminal prosecution. What it misses is the far greater likelihood, if not certainty, that clerks who fail to comply will be sued. Then they will be at risk for having to pay damages and attorney fees,” Minter added. “Those will come at taxpayer expense.”
On Monday, a federal magistrate in Boise ordered the state of Idaho to pay more than $400,000 to a team of lawyers that fought that state’s gay marriage ban, The Associated Press reported.
Bass, Greenberg Traurig’s co-president, said in a statement Friday the firm “is not advising the clerks as to the constitutionality of the Florida ban on same-sex marriage.”
Bass told the Miami Herald that Greenberg Traurig actually supports same-sex couples’ right to marry and on Monday filed a friend-of-the-court brief in Florida’s Third District Court of Appeal “in support of two circuit court orders declaring unconstitutional Florida’s ban on same-sex marriage,” Bass said.
From the brief: “The issues in this case are not only about the rights of individuals to marry whom they choose — as important, compelling and essential as those issues are — it is about children and families. The State of Florida has no rational basis whatsoever — much less any basis that could satisfy a higher standard — for denying those children, especially those whom the State itself places with a same-sex couple, from all the benefits, both actual and psychological, that living as the child of a married couple confers on that child.”
Greenberg Traurig filed the brief on behalf of gay adoptive father Martin Gill. Bass and Greenberg Traurig, along with the ACLU of Florida, helped represent Gill in his quest to overturn a 1977 Florida law that prohibited gays and lesbians from adopting. Gill adopted his foster sons in 2010.
Gill on Monday asked other LGBT activists not to blame Greenberg Traurig for its advice to the county clerks, that Bondi and Gov. Rick Scott are responsible for the ongoing legal fight.
“In states such as Kansas where governors do not concede and welcome the decisions, we have seen chaos. In Kansas, counties within the same state have interpreted the court's decision differently or have flat out ignored the court's decision,” Gill said. “By continuing their opposition, or by simply failing to lead, Rick Scott and Pam Bondi are inviting just such chaos.”