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Gay marriage in Florida by Jan. 6? Maybe, maybe not

By Mike Salinero
Published: December 22, 2014 Updated: December 22, 2014 at 10:55 PM

TAMPA — A U.S. Supreme Court decision last week cleared the way for same-sex marriage in Florida by Jan. 6, but that doesn’t necessarily mean gay couples will immediately be able to get married in Hillsborough and Pinellas counties.

Clerks of court in both counties say Friday’s Supreme Court ruling left unclear the legality of Florida clerks issuing same-sex marriage licenses. They said they won’t issue licenses to same-sex couples until they are certain they can legally do so.

U.S. District Judge Robert Hinkle struck down Florida’s 2008 ban on gay marriage in August, saying his decision would not take effect until after Jan. 5. Attorney General Pam Bondi requested a stay on Hinkle’s ruling, but the Supreme Court on Friday rejected that request by a 7-2 vote.

Bondi has argued that allowing gay marriages in Florida before all appeals were completed would cause “confusion,” but in a statement Friday she said her office will abide by the ruling. “The Supreme Court has now spoken, and the stay will end on January 5,” Bondi said.

But the Florida Court Clerks and Comptrollers, which represents local clerks of court, warned in a statement that the decision wasn’t binding to anyone other than the parties directly involved in the Washington County lawsuit challenging the state ban. Washington County is a mostly rural county in the Florida Panhandle.

Clerks around the rest of the state could be “guilty of a criminal act” if they allow gay couples to marry before a court with the proper jurisdiction rules on the issue, the statement read.

That warning has left clerks of courts in the rest of Florida’s 67 counties uncertain whether they can grant same-sex marriage permits after Jan. 5.

Hillsborough Clerk of Court Pat Frank said she anticipates some kind of breakthrough that will allow her to start marrying same-sex couples on Jan. 6. With that in mind, Frank said, she’s applied for a permit to marry couples in Joe Chillura Courthouse Square, a Hillsborough County-owned park in downtown Tampa. Frank’s office is across Kennedy Boulevard from the park in the Frederick B. Karl County Center.

“I’m anticipating if this opens up, there will be a lot of people and the park will give us an overflow option,” Frank said. “I’m just assuming that good news will prevail.”

If there is no further judicial clarification before Jan. 6, Frank said, she fears she will not be able to issue the marriage licenses.

“If there’s any narrow path that I can locate that permits me to do it without having criminal charges against me, I will do it,” Frank said.

Ken Burke, the Pinellas County Clerk of Court, said his office will not issue marriage licenses to same-sex couples unless Hinkle clarifies his ruling to say it encompasses counties other than Washington. He cited the opinion last week by attorneys for the Florida Court Clerks and Comptrollers.

“I have a duty to uphold the law as best as I know it,” Burke said. “If I’m told that something is a criminal act, it would be irresponsible of me to commit a criminal action. That’s an oath we take _ to uphold the law.”

Meanwhile, attorneys for the clerks’ association were to discuss the situation Monday afternoon with Washington County Clerk Lora Bell and her attorney. The discussion, according to an e-mail from the GreenbergTraurig law firm to Burke and other clerks, would be whether the clerks should seek a clarification from Judge Hinkle.

“While he may well not provide any direction regarding statewide application, he is our best opportunity,” said the e-mail, written by attorney Fred W. Baggett.

Gay rights organizations, meanwhile, said clerks of courts should issue same-sex marriage licenses after Jan. 5.

“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,” said Nadine Smith, CEO of Equality Florida, a statewide gay rights organization. “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.”

Smith said more than 25 friend-of-the-court briefs are being filed this week to the 11th Circuit, in support of same-sex marriage, including one signed by Tampa Police Chief Jane Castor. Also in support are Delta Air Lines, Levi Strauss & Co., CBS Corp., eBay, Staples and Target, Smith said, with that brief saying that “denying marriage to gay and lesbian citizens (is) bad for our businesses.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said clerks of court should not let the warning memo from the Florida Court Clerks and Comptrollers’ attorneys stop them from doing the right thing .

“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,” said

Minter said while some clerks of courts are worried about legal liability if they issue same-sex marriage licenses, they need to worry more about what will happen if they don’t issue the licenses.

“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,’’ Minter said. “There is one Constitution, Florida is one state, and all Floridians are entitled to equal treatment throughout the state.”

If there is no clarification from Judge Hinkle, lawyers for the clerks’ association are preparing a template for clerks to use in response to any legal actions that may be filed against them, according to an e-mail sent to clerks by the GreenbergTraurig law firm.

“The response would simply say that, based on advice of counsel, that case law determines the Federal District Court order to apply only to the parties of the case before it, and that the clerk(s) request the court to determine what his or her duty is in the matter before the court,” said the e-mail signed by attorney Fred W. Baggett.

Staff writer James Rosica and Tribune-Scripps Capital Burea reporter Matt Dixon contributed to this report.