MIAMI – Clerk of courts throughout Florida are proceeding with caution before issuing same-sex marriage licenses early next year.
"The U.S. Supreme Court has spoken and there is absolutely no reason for a clerk not to begin issuing those marriage licenses come Jan. 6," Stratton Pollitzer told Local 10 News.
The co-founder of Equality Florida said Friday's refusal by the U.S. Supreme Court to extend a stay was a game changer.
"Any clerk who fails to follow the command of the United States Constitution by refusing to marry couples who show up Jan. 6 will not only be on the wrong side of history, they'll be on the wrong side of the law," Pollitzer said.
But a recent memorandum by Miami law firm Greenberg Traurig representing the Florida Association of Clerks and Comptrollers advised that issuing same-sex marriage licenses after the ban expires Jan. 5 could leave clerks at risk of a fine or even jail time.
At issue is confusion if the order applies narrowly to one federal lawsuit or broadly.
In the absence of definitive clarification from Florida Attorney General Pam Bondi's office, Local 10 found clerks are proceeding with caution.
On its website, the Broward County Clerk of Courts posted this notice:
"Our office is aware that the U.S. Court of Appeals for the Eleventh Circuit on Wednesday, Dec. 3, 2014, denied the motion of the state of Florida to extend the current stay of Judge Hinkle's district court order holding Florida's same-sex prohibition law unconstitutional and confirming the expiration of that stay order at the end of Jan. 5, 2015. We are working with counsel to determine an understanding of the precedential impact of the court's decision and the expiration of the current stay on the duty and operation of the office."
Ron Saunders, legal counsel for the Monroe County clerk, told Local 10 that the "wild card" is Bondi.
"I think she was being disingenuous when she said the stay will end," Saunders said. "If that was the case, she would have said we'll dismiss the appeal in the Third (District Court of Appeal). Until she dismisses the appeal, we're bound to not issue licenses."
The reaction from same-sex marriage advocates has been swift and clear.
"Any clerk who refuses to follow that command can expect costly lawsuits, not only for attorney's fees but for damages as well," Pollitzer said.
Nancy Brodzky, trial attorney for Heather Brassner in Broward County's same-sex divorce case, echoed those sentiments.
"We are preparing to sue every clerk of court in the state of Florida that refuses to issue marriage licenses to same-sex couples on Jan. 6," she said.
Whitney Ray, press secretary for Bondi's office, said in an email that the office sought a stay from the U.S. Supreme Court "to avoid uncertainty and inconsistency in Florida's marriage laws to avoid this type of situation. The court clerks have received advice from their legal counsel."
Local 10 contacted several South Florida state attorneys to get their response.
"We will not prosecute same-sex couples who express their lifelong commitment to one another through marriage, or the clerks of court who take part in the process," Palm Beach County state attorney Dave Aronberg said in a statement. "We also do not prosecute unmarried heterosexual couples who cohabitate in violation of Florida law."
The office of Miami-Dade County state attorney Katherine Fernandez Rundle told Local 10 it would not comment because it doesn't respond to "hypotheticals."
Miami-Dade County Clerk of Courts Harvey Ruvin also did not respond.
"We are waiting for clarification from the federal judge as to whether the lifting of the stay on Jan. 6 is going to affect all clerks, only the Washington County clerk or only the parties in that particular lawsuit," Palm Beach County Clerk & Comptroller Sharon Bock said in a statement. "While other Florida lawsuits are working their way through our state court system, there have been no definitive decisions on the clerks' ability to issue same-sex marriage licenses. Should the court hold that the Washington County clerk can issue same-sex marriage licenses and not all clerks, then the Palm Beach County Clerk & Comptroller will be open to perform same-sex marriage ceremonies. Our office will issue same-sex marriage licenses as soon as we are legally authorized by the courts to do so."
Pollitzer plans to arrive at the Broward County courthouse Jan. 6 with his partner of 21 years and expressed confidence they will be issued a marriage license.
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