As of January 6th, same-sex marriage may be technically legal in Florida. The only hitch: clerks who issue same-sex marriage licenses could end up in jail for a year.
That's according to a memo issues last week by law firm Greenberg Traurig to Florida Court Clerks & Comptrollers, but gay rights groups are urging clerks to ignore the warning and issues licenses on January 6th anyway.
Though Miami-based Greenberg Traurig as a firm supports gay marriage, they issued the memo last week warning that 2008's amendment two not only banned gay marriage but provided severe punishments for clerks who issue same-sex wedding licenses. That includes arrest, a $1,000 fine and a year in jail.
Is that likely to happen? No. But could one lone Florida prosecutor decide to test out the law and prosecute some clerks? Possibly.
Equality Florida however has called the memo's warning "exaggerated."
"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," says Equality Florida's Nadine Smith. "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."
Gay rights groups have also threatened to take legal action against any clerks who refuse to issue marriage licenses to same-sex couples.
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"Any Florida clerk who refuses to follow the Constitution's command and who withholds marriage licenses from couples once the stay expires is on the wrong side of history and the wrong side of the law," said Shannon Minter, Legal Director for the National Center for Lesbian Rights. "A discredited memo from a law firm won't provide much protection against the risk of being sued for unconstitutional actions and being held liable for any damages -- and attorney fees -- incurred by couples as a result of withholding the freedom to marry. There is one Constitution, Florida is one state, and all Floridians are entitled to equal treatment throughout the state."
In deed, several state attorneys in the state have clarified that they will not in fact prosecute any county clerks who issues licenses.