Marriage Equality Comes to Florida -- But Confusion Reigns

Update 12/24/14 1:15pm: A statement from Clerk Pat Frank with Hillsborough County : "We are waiting for clarification of Judge Hinkle's order. If the clarification permits us to marry same sex couples, we are prepared to do so."

As the stay in the cases of Armstrong v. Brenner and Secretary, and Florida Dept. of Health v. Grimsley is set to expire, LGBT couples look forward to finally having the right to tie the knot right in the Sunshine State. Bigots, who seem to be in no short supply in Florida, and who don't seem very willing to accept facts, have continued to huff and puff, and have now resorted to promising lawsuits, fines and even jail time to clerks who issue marriage licenses to same sex couples.

Hotspots reached out to many of the county clerks asking what they were preparing to do as the stay expires. As the responses came in, it became clear that most of the clerks don't feel they will be legally able to issue licenses based on their counsel's interpretation of the ruling and the stay. All of the responses have left us with no clarity but they ensure that this fight is far from over. Both sides seem poised to take legal action regardless of what happens early in January. Here is what we have gathered so far.

South and Southwest Florida

Broward County told us "At this time the Clerk has not confirmed whether or not our office will be issuing licenses as of January 6, 2015 to same sex applicants. We are still working with counsel to determine what direction we will be taking."

In Miami-Dade, the clerk has filed a motion asking for clarification on the issue as well as for that clarification to be expedited so the clerk can act in accordance with the law.

Palm Beach County issued a statement from Clerk Sharon Bock which said, in part, "Regardless of my personal opinion that this is a civil rights issue, I am constitutionally bound to uphold the law." She then quoted the most recent opinion from the state clerks' counsel which advised against issuing licenses. This is even after the State Attorney, Dave Aronberg, told the Clerk's office that he would not prosecute them for issuing said licenses.

The clerk in Lee County blamed the US Supreme Court for the ambiguity but did state, "The Clerk's Office is committed to complying with the laws governing our office. We are a ministerial office and it is not our place to determine what services we will or will not provide -- rather it is our duty to follow the law. Our office will issue same-sex marriage licenses when it is legally allowed in Lee County. We hope that there will be a clear resolution to this matter in the future." The clerk there also made sure to note that her personal feelings on this issue were sympathetic.

In addition, the county clerks in Manatee, Sarasota, Desoto, Charlotte Counties and Hardee have announced they will not be issuing licenses. The clerk in Collier County is taking a "wait and see" approach and has not definitively told us their future plans either way.

Central Florida

Hernando County responded, "It is our duty as a Court Clerk to act in accordance with Florida law. We are responsible for administering the law; therefore, it is not within our purview to interpret the law. We are going to follow the advice of the Florida Court Clerks & Comptrollers' legal counsel that, at this time of uncertainty, we do not issue same-sex marriage licenses until a binding order is issued by a court of proper jurisdiction."

Pasco County will not issue, stating, "Due to this legal uncertainty, our Clerk Paula S. O'Neil has been advised by the Florida Court Clerks & Comptroller's Association and its legal counsel to refrain from issuing same-sex marriage licenses without a binding order issued by a court of proper jurisdiction."

In Osceola County, they are really preparing for the inevitable and plan to open at midnight if marriages go forward. They stated, "In the event that the United States Supreme Court or other binding court issues an opinion which invalidates Florida's same sex marriage ban prior to the end of the business day on January 5, 2015, the office of the Osceola County Clerk of Court will open at 12:01 a.m., on January 6, 2015, for a period of two (2) hours in order to begin issuing same-sex marriage licenses. Licenses will be issued to the first thirty (30) couples, providing the appropriate information, who appear at the Osceola County Clerk's office, 2 Courthouse Square, Kissimmee, Florida, 34741, before 2:00 a.m. The office of the Osceola County Clerk of Court will re-open at 8:00 a.m., on January 6, 2015, for business as usual, and will continue issuing marriage licenses at that time."

Update: As of December 24, 2014, Osceola County has decided to go forward and issue same-sex marriage licenses on January 6, 2015

It is worth noting that at the end of the day yesterday, State Attorney Jeff Ashton released a statement saying that he would not prosecute either Orange County Clerk Tiffany Moore Russell or Osceola County Clerk Armando Ramirez if they issue marriage licenses to gay couples on January 6. For her part, Ms. Moore Russell still says her hands are tied. Hopefully soon they will be untied. This must be frustrating for Ms. Moore Russell as she has marched in the Orlando Pride parade multiple times and considers herself an LGBT ally.

In addition to these counties outlined above, Indian River, Citrus, Marion, Polk and Lake Counties will not be issuing licenses. The counties of Flagler, Volusia and Brevard are taking a "wait and see" approach, with Brevard County specifically stating that they will issue licenses when all other counties are free to do so, which may or may not be on January 6.

We received a press release from the Florida Court Clerks & Comptrollers Executive Director Kenneth A. Kent. In a show of just how out of touch they seem to be, Director Kent refers to "same gender marriages." Maybe I am splitting hairs here but...same gender marriages? I guess I should just be happy they have taken sex out of it, but "same gender marriages" sounds funny (odd) to us.

Statement on Behalf of the Florida Court Clerks & Comptrollers Executive Director Kenneth A. Kent Regarding Same-Gender Marriage Licenses in Florida

"Our general counsel has advised us that established case law makes it clear that the order of a trial court, including the Federal District Court in this case, is not binding on any other court. Further, it is the understanding of the Florida Court Clerks & Comptrollers that the only courts that can bring judicial clarity to this question through a binding, statewide decision are the U.S. Supreme Court, the Florida Supreme Court or a Florida District Court of Appeals. Absent a ruling from one of those three bodies, our opinion, as previously presented by our general counsel, will not change. The Clerks of the Court remain committed to their duties as constitutional officers. And, to further gain clarity, our general counsel has recommended that the Washington County Clerk consider filing an emergency motion with the Federal District Court seeking clarification as to who the court's injunction was intended to apply."

So there you have it. As of this week, many of the court clerks are playing it safe and are waiting for further clarity on the issue. Surely, some counties will drag their feet because they are led by homophobic bigots who don't believe in marriage equality. Some will wait because they believe the Federal District Court ruling does not change law statewide and that it only applies to the specific county named in the suit, and others will wait because they fear any marriage licenses issued could be invalidated by subsequent rulings.

Equality FloridaLGBT organizations quickly condemned the hesitation and confusion outlined above. Equality Florida's Nadine Smith is encouraging everyone to contact your county's clerk and let them know how you feel. Find your clerk here. Smith also stated, "Clerks can stand in the doorway and try to block equality or they can welcome gay couples who have waited for decades for this moment. We expect every Clerk to uphold their oath and protect the constitutional rights of gay couples seeking marriage licenses. No legal firm's memo overrides their clear legal obligation."

Shannon Minter, Legal Director for the National Center for Lesbian Rights said, "Any Florida clerk who refuses to follow the Constitution's command and who withholds marriage licenses from couples once the stay expires is on the wrong side of history and the wrong side of the law. A discredited memo from a law firm won't provide much protection against the risk of being sued for unconstitutional actions and being held liable for any damages - and attorney fees - incurred by couples as a result of withholding the freedom to marry. There is one Constitution, Florida is one state, and all Floridians are entitled to equal treatment throughout the state."

We will continue to follow this story as new facts and findings develop. Remember that Florida requires a three-day waiting period after the issuance of a marriage license for it to become valid. Couples are able to marry immediately only if the provide proof that they have completed a premarital course. Unless you have completed this course, you can apply for a marriage license on the 6th, but you won't legally be married until the 9th. Stay tuned for more information as we get closer to the expiration of the stay.