Federal judge says Florida clerks have duty to issue same-sex marriage licenses

FILE - In this July 2, 2014, file photo, Kimmy Denny and her partner, Barb Lawrence of Palm Harbor, Fla., wait outside a court hearing on gay marriage in Miami. (AP Photo/J Pat Carter, File)

MIAMI – A federal judge says that Florida's county court clerks have a legal duty to issue marriage licenses to same-sex couples, but he has stopped short of ordering them to do so.

U.S. District Judge Robert Hinkle issued a ruling Thursday in Tallahassee federal court responding to requests to clarify his previous order that Florida's same-sex marriage ban was unconstitutional. He stayed that order, but the stay is scheduled to expire at the end of the day Monday.

The association representing county clerks said the ruling applies only to Washington County, where a lawsuit filed by two men became a key basis for Hinkle's order. Gay rights groups said Hinkle's order applies statewide.

Hinkle warned Thursday that clerks who don't start issuing the licenses when the stay expires could face future lawsuits or other legal consequences.

"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."

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.

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.

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 told The Florida Times-Union 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."