Lawyers, Activists: Florida Law Firm Wrong In Advising Clerks Not To Issue Same-Sex Marriage Licenses

By Steve Rothaus, Miami Herald (TNS)

MIAMI – 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.

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 law suit. Until a binding order is issued by a court of proper jurisdiction, the law is not changed,” Doggett wrote 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 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 from 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.”

Minter co-represents Equality Florida Institute and six same-sex couples who in January 2014 sued Miami-Dade County Clerk Harvey Ruvin to issue them marriage licenses. He says the Greenberg Traurig memo has “sowed needless confusion.”

“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 said. “Those will come at taxpayer expense.”

Hilarie Bass, the firm’s Miami-based co-president, said in a statement Friday that “Greenberg Traurig is not advising the clerks as to the constitutionality of the Florida ban on same-sex marriage.”

Bass told the Miami Herald Friday that Greenberg Traurig actually supports same-sex couples’ right to marry and on Monday would file 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.

The friend-of-the-court brief will be filed on behalf of gay adoptive father Martin Gill, Bass said.

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.

Photo: “orangejack” via Flickr