FLORIDA — In addition to same-sex marriage being banned in Florida, issuing a license for a same-sex couple to marry carries a penalty. Florida statute 741.05 reads, “Any county court judge, clerk of the circuit court, or other person who shall violate any provision of ss. 741.03 and 741.04(1) shall be guilty of a misdemeanor of the first degree.”
On January 6, 2015, an order by Federal Judge Robert Hinkle striking down Florida’s ban on same-sex marriage will take effect; however, clerks across the state will not be issuing marriage licenses. Last week clerks across the state announced that based on legal opinion, Hinkle's decision would only impact Washington County, the county named in the suit, and not Florida’s other 66 counties.
It would be up to the state attorney in each circuit to arrest clerks for violating state law.
“That’s a bunch of baloney, nobody is afraid of that,” said Brevard County Clerk Scott Ellis when asked about the threat of arrest for issuing same-sex marriage licenses.
Phil Archer, state attorney for the 18th Circuit, which covers Brevard and Seminole counties, has said he will not prosecute the two clerks in his district. In the 9th Circuit, which covers Orange and Osceola counties, Jeff Ashton's office declined to say what it would do. Through a spokesperson the office said, "The state attorney does not announce in advance which cases he will prosecute. If he receives a complaint, that complaint will be investigated and evaluated, as other complaints are, and a charging decision will be made at the appropriate time."
But, even with the threat of criminal charges removed, clerks say they still will not issue licenses.
“The one thing we don’t want to do is issue licenses that later become invalidated,” says Brevard County Clerk Ellis. “Any license you issue you may have to reissue.”
"I am prepared to officiate the ceremony," says 9th Circuit Judge Bob LeBlanc. "If the clerk issues the licenses I am prepared to carry out the ceremony."
LeBlanc confirmed to Nine Investigates that he will carry out a same-sex marriage ceremony for up to 30 couples at The Gay, Lesbian, Bisexual, Transgender Community Center of Central Florida on January 6, 2015 at 6 p.m., but only if Orange County Clerk Tiffany Moore Russell decides to issue marriage licenses. The clerk’s office said at this point it will not issue the licenses.
Even if clerks across the state decide to issue same-sex marriage licenses, state red tape may bring the system to a halt.
Marriage licenses are issued through the Florida Department of Health’s Bureau of Vital Statics and right now the bureau does not have the proper paperwork for same-sex couples.
“They have no plans, as of today, to have a form ready for the sixth,” says Tyler Winik, of the Brevard County Clerk’s Office. “We’re kind of in a limbo situation.”
The Brevard County Clerk’s Office says it has received more than a dozen calls from couples inquiring about the January 6 deadline. The office says it has instructed all of its offices not to issue marriage licenses to same-sex couples until it gets a ruling from a court that covers the entire state.
“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, of Equality Florida, in a written release Monday. “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.”