A legal group on Wednesday warned
Florida clerks that they may be held in contempt of court if they
continue to enforce the state's gay marriage ban after a ruling
striking it down takes effect next month.
The Supreme Court last week refused to
delay implementation of the decision, removing the last obstacle for
it to take effect after January 5, when the current stay expires.
The law firm Greenberg Traurig advised
clerks not a party to the litigation against issuing such licenses
starting next month.
“The advice provided by Greenberg
Traurig to our client, the Florida Association of Clerks and
Comptrollers, addresses a Florida clerk's duties under existing
Florida law, which prohibits the issuance of same-sex marriage
licenses,” Hilarie Bass, the firm's Miami-based co-president, told
the Miami
Herald. “Current Florida law makes it a crime –
punishable by imprisonment or a fine – to issue a marriage license
to a same-sex couple. Greenberg Traurig is not advising the clerks as
to the constitutionality of the Florida ban on same-sex marriage.”
Lora Bell, the clerk of court for
Washington County, on Tuesday asked U.S. District Judge Robert L.
Hinkle to clarify whether his ruling only applies to plaintiffs.
“[T]he Clerk requests clarification
as to whether the Injunction requires that the Clerk only issue
marriage licenses to Stephen Schlairet and Ozzie Russ as specifically
set forth in the Injunction, both of whom are parties to this matter,
or if the Injunction requires that the Clerk issue marriage licenses
to all same-sex couples who apply once the stay expires at the end of
the day on January 5, 2015,” the filing states. “[T]he Clerk is
uncertain whether the Injunction requires her to issue marriage
licenses to other same-sex couples.”
Several of the state's 67 clerks have
already said that they do not plan to begin issuing marriage licenses
to gay couples on January 6, arguing that the ruling applies only to
Washington County.
The National Center for Lesbian Rights
(NCLR), which represents plaintiffs in similar state challenges, and
Equality Florida, the state's largest LGBT rights advocate, said on
Wednesday that the ruling applies to all counties and that the
“advice provided to the Clerks Association in legal memoranda from
a private law firm is incorrect.”
NCLR
concluded that “a federal court order is binding not only on
the parties to the case, but also on all 'persons who are in active
concern or participation with' any of the parties”; “non-party
government officials may choose to comply with a federal district
court ruling that a law is unconstitutional, even when they are not
technically bound by the ruling”; “an unconstitutional law is
void and unenforceable”; and “county clerks who follow Judge
Hinkle's ruling could not be held criminally liable for doing so
because they would not have the required specific criminal intent.”
“[S]ince county clerks are 'in active
concert and participation' with the named parties in Brenner …
clerks who fail to comply with that order may be held in contempt of
court,” the memo added.