Most of Florida's 67 clerks of court don't plan to issue marriage licenses to gay couples on Jan. 6 because they are paralyzed by confusion over whether a same-sex marriage ban is being lifted across the whole state that day, according to an Associated Press survey.
The overwhelmingly majority of clerks who responded to AP's inquiry this week said they wouldn't offer marriage licenses to same-sex couples without further clarification from a federal judge on whether his ruling applies beyond Washington County. A lawsuit filed in the remote Panhandle county by two men seeking to be married became a key basis for U.S. District Judge Robert Hinkle's decision ruling the state's same-sex marriage ban unconstitutional.
The association representing Florida's clerks has issued an opinion that the ruling doesn't apply to other counties, and said clerks can be prosecuted for violating the law if they issue same-sex marriage licenses. Most clerks are following that advice.
"I'm not going to break the law," said Paula O'Neill, the clerk for Pasco County, in the Tampa area. "I'm not going to issue licenses until it's legal."
Of the 53 clerks who responded to the AP survey, 46 said they wouldn't grant marriage licenses to same-sex couples because they lack legal authority. Six said they hadn't made up their minds. Only one clerk outside Washington County, Osceola County's Armando Ramirez, said he would issue the licenses.
Ramirez said his office, south of Orlando, would begin issuing marriage permits for same-sex couples a minute after midnight on Jan. 6. He said it's a matter of not discriminating against a minority group.
"We won't waste any time," he said.
Gay rights groups are disputing the clerk association's interpretation of Hinkle's ruling, and they're threatening legal action if licenses for same-sex couples aren't issued across the state. On Wednesday, they sent a memo to Florida's 67 clerks of court stating the clerks are required to stop enforcing Florida's ban on same-sex marriage in two weeks.
"We are prepared to fight," said Sharon Kersten, a public relations consultant for Equality Florida, the gay rights group.
Some clerks said they're hoping for clarification from a court. Dwight Brock, clerk of Collier County in southwest Florida, said it would be "disastrous" if counties didn't act in a uniform manner. He hasn't decided what to do given the conflicting opinions.
"It is as clear as mud," Brock said.
The judge may offer some clarity. Washington County's clerk on Tuesday asked Hinkle if his ruling applied only to the couple in the lawsuit or to any same-sex couple seeking a marriage license from the county. On Wednesday, Hinkle asked two state agencies to offer their positions by next Monday on whether his ruling "binds a Florida clerk of court."
Several clerks who don't plan to issue the licenses until they get further clarification said they're conflicted, since they support gay rights.
"I've been with the gay community on the issue of equality, forever. I want to see this resolved," said Pat Frank, clerk for Hillsborough County. "The only thing that concerns me are the penalties that might affect my office. It's a first-degree misdemeanor if the State Attorney decides to prosecute me."
At least one Florida prosecutor, State Attorney Jeff Ashton in Orlando, has said he wouldn't prosecute any clerks for issuing marriage licenses to same-sex couples. His jurisdiction covers Orange and Osceola counties.
Some clerks are considering sending same-sex couples to county judges, who are also allowed to issue marriage licenses under Florida law. County judges can waive some marriage-license requirements, such as the three-day waiting period or the restriction on a minor getting married.
"Maybe, if nothing changes, we would treat it like these other cases, and send it to a county judge," said Ken Burke, clerk of Pinellas County in the St. Petersburg area.
Meanwhile, an appellate court in Miami upheld Wednesday the dismissal of a divorce petition by a lesbian couple who had married in Iowa. The judges on the 3rd District Court of Appeal said same-sex couples don't have standing to dissolve their marriages in Florida since the state only recognizes marriages between a man and a woman.
"We acknowledge that the nation is presently engaged in a great national conversation on the subject of same-sex marriage," the judges said. "However, this is neither the time nor the place for this court to insert itself into that discussion."