TALLAHASSEE — Lawyers for Florida’s 67 clerks of court are warning that those who issue marriage licenses to same-sex couples will be “subject to criminal penalties,” including arrest and imprisonment.
The Florida Association of Court Clerks and Comptrollers on Tuesday released the revised legal opinion from its attorneys.
Some clerks had been preparing for same-sex unions after a federal judge in Tallahassee declared the state’s ban on those marriages unconstitutional.
Hillsborough County Clerk of Court Pat Frank was not available for comment Tuesday afternoon. Frank has said she was willing to marry same-sex couples in a mass ceremony in a park across from the courthouse.
Pinellas County Clerk of Court Ken Burke said he too was ready to marry same-sex couples but will follow the lawyers’ advice.
“We’re just looking for direction,” he said, “but I think it’s inevitable something will change.”
U.S. District Judge Robert Hinkle ordered a delay of the effect of his ruling until Jan. 5 to allow time for appeals, and requests to extend that delay have so far been denied.
But a memo from Greenberg Traurig, the association’s general counsel, says Hinkle’s ruling does not apply statewide because it wasn’t confirmed by a “binding appellate ruling.”
The memo also refers to state law saying clerks cannot issue marriage licenses “unless one party is a male and the other party is a female.”
A violation is a first-degree misdemeanor, punishable by up to year in jail and a $1,000 fine.
Clerks cannot “interpret the law or act without a full understanding of what the law does and does not allow,” said Kenneth A. Kent, the association’s executive director.
“At this time of uncertainty,” the association is telling clerks “to follow the advice of our legal counsel,” he added.
“We realize that it may seem to many that Judge Hinkle’s ruling that Florida’s same-sex marriage ban is unconstitutional and violates fundamental rights would permit all Florida clerks of court to lawfully issue marriage licenses to same-sex couples,” the Greenberg Traurig memo said.
But “clerks of court who were not parties to the case are not bound by Judge Hinkle’s order – or protected by it,” according to the memo. The only clerk affected is in Washington County, in the state’s Panhandle.
Howard Simon, executive director of the American Civil Liberties Union of Florida, said it’s highly unlikely any clerk would face arrest for issuing a marriage license to a gay couple.
He also said it would be impractical to file identical lawsuits naming all 67 court clerks as defendants.
“When a federal judge declares a law unconstitutional, all public officials should cease enforcing that law. Period,” said Simon, whose organization filed the federal lawsuit challenging the same-sex marriage ban.
The Associated Press contributed to this report.