Judge: Clerks Have Duty to Issue Same-Sex Marriage Licenses in Florida
Tuesday, March 2, 2021
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"History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case," Hinkle wrote. Hinkle said while his order doesn't require a clerk to issue marriage licenses to same-sex couples, "the Constitution requires the clerk to issue such licenses."

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The National Center for Lesbian Rights and American Civil Liberties Union in Florida cheered Hinkle's ruling Thursday.

"We expect all clerks to respect the ruling. But if not, we are committed to ensuring marriage equality in all 67 counties in Florida and we would like to hear from any couples that are wrongfully denied a license after the stay expires," said Daniel Tilley, an attorney on LGBT rights for the ACLU of Florida.

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An Associated Press survey of Florida's county clerks last week found that an overwhelming majority didn't plan to issue marriage licenses to same-sex couples starting Tuesday until they had further legal clarity. Attorney General Pam Bondi said she was pleased the court had offered "additional guidance" to clear up confusion surrounding his previous order. "My office will not stand in the way as clerks of court determine how to proceed," she said in an emailed statement. 

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While awaiting Hinkle's clarification, a handful of Florida county clerks said they would stop offering courthouse wedding ceremonies, partly to avoid performing those ceremonies for same-sex couples.  The clerks of court in Duval, Clay and Baker counties said they would have no choice but to issue marriage licenses to same-sex couples when Florida's ban on same-sex marriage expired. However, they decided to end all courthouse weddings to avoid performing those ceremonies for same-sex couples, among other reasons. The clerks in Santa Rosa and Okaloosa counties also made similar announcements.  Duval County Clerk of Courts Ronnie Fussell said that none of his staff members who currently officiate at wedding ceremonies felt comfortable performing same-sex weddings. "It was decided as a team, as an office, this would be what we do so that there wouldn't be any discrimination," Fussell said. "The easiest way is to not do them at all." 

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Residents of Baker, Clay and Duval counties who want to avoid usual wedding expenses will now have to find a minister or notary to perform the ceremony after they pick up their marriage license, but a place other than the courthouse.  Baker Clerk Harvey said the decision is as much about logistics as it is personal conviction. The room where weddings are performed each year will now be used as space for people filling out paperwork related to domestic violence injunctions. "I needed the space and our county we're in the Bible Belt," she said. "... If we're made by the law to issue a gay marriage license we will do that, but we are not mandated to marry couples in our courthouse." Harvey said there are members of her staff who would be uncomfortable performing same-sex weddings and she did not want to force them. She said she doesn't feel comfortable performing weddings at all, gay or straight, and hasn't officiated a ceremony in years. Justin Horan, general counsel for the Clay County clerk of courts, said the debate over gay marriage accelerated discussions on whether to end courthouse weddings. "Really it just expedited our evaluation on whether to continue to offer marriage ceremonies," he said. "We had been talking about it for several months now."  In addition to ending weddings, the Clay courthouse will no longer allow residents applying for passports to take their photos there. Once a new web-based system launches, people also won't be able to purchase foreclosed properties at the courthouse.  "We felt that it was appropriate for us to focus on other services that the clerk offers," Horan said.