Florida is set to become the 36th state in the nation to allow same-sex marriages just after the new year starts. But don’t expect Pasco — or even neighboring counties — to join in.
The U.S. Supreme Court refused to intervene in a Florida case, where U.S. District Judge Robert Hinkle struck down laws banning same-sex marriage in August, saying the state’s ban violated the 14th Amendment of the U.S. Constitution, which provides for equal protection under the law. Hinkle refused to keep a stay in place for further appeal, which would technically allow same-sex marriages beginning Jan. 6.
Florida Attorney General Pam Bondi appealed that decision to the Supreme Court, which decided last Friday not to reinstate the stay that would’ve put a hold on Hinkle’s decision.
Yet, there continues to be quite a bit of ambiguity when it comes to the court ruling, and whether or not county clerk’s offices — like Paula O’Neil’s locally — would be allowed to start issuing same-sex marriage licenses on Jan. 6.
“Due to this legal uncertainty, our clerk … 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,” said Debbie Gay, the interim director of records in O’Neil’s office, in a release.
On her website, O’Neil said there “has been a lot of press” about same-sex marriage in Florida, and as a constitutional officer, she is required to “support, protect and defend” the U.S. Constitution, as well as both federal and state laws. Those state laws, she said, currently prohibit marriage licenses to a couple that is not a man and a woman, and that a clerk who violates that prohibition is guilty of a criminal act that would make them subject to both fine and imprisonment.
The case Hinkle decided, O’Neil said, was specific to those who sued Washington County, and does not have authority or provide protection for clerks of court outside that county to issue same-sex marriage licenses.
Bondi, responding to the Supreme Court decision, also remained ambiguous on what the ruling would mean once the stay is lifted Jan. 5.
“Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage,” Bondi said in a statement. “Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”
Although clerks like O’Neil may be worried about criminal penalties if they start issuing same-sex marriage licenses, some gay rights groups warn clerks should be worried if they don’t.
“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 Shannon Minter, legal director for the National Center for Lesbian Rights, in a statement through the gay rights advocacy group Equality Florida. “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.”
Minter is referring to the legal opinion from the Greenberg Traurig law firm that clerks like O’Neil are adhering to in deciding whether or not to issue same-sex marriage licenses.
