Florida gay marriage controversy: Firm tells clerks they’ll go to jail.

Law Firm Issues Bogus Advice to Clerks About Gay Marriage Licenses, Gets Slapped Down

Law Firm Issues Bogus Advice to Clerks About Gay Marriage Licenses, Gets Slapped Down

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Expanding the LGBTQ Conversation
Jan. 2 2015 12:02 PM

Law Firm Issues Bogus Advice to Clerks About Gay Marriage Licenses, Gets Slapped Down

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Opponents and supporters of marriage equality rally outside a Miami courthouse in July 2014.

Photo by Joe Raedle/Getty Images

On Jan. 6, gay marriage will become legal in Florida, despite Attorney General Pam Bondi’s tireless efforts to ensure that same-sex couples in the state remain legal strangers. But this is Florida we’re talking about, land of hanging chads and python hunts, so naturally, there’s a bizarre last-minute hitch: In December, law firm Greenberg Traurig sent an unscrupulous legal memo to the state’s clerks, informing them that they could be arrested for issuing marriage licenses to gay couples.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Greenberg’s memo was disreputable for a number of reasons, but its primary problem is that it was incredibly stupid. In August 2014, U.S. District Judge Robert Hinkle ruled that Florida's anti-gay-marriage amendment violated the U.S. Constitution. But he put the ruling on hold while the state appealed, setting the hold to expire at the end of the day on Jan. 5, 2015, unless a higher court stepped in. Both the 11th Circuit and the Supreme Court, however, refused to stay Hinkle’s ruling, and so clerks throughout Florida are now preparing for a flood of gay applicants the morning of Jan. 6. Given that the state’s gay marriage ban had been legally invalidated, granting marriage licenses to gay couples would seem to be the clerks’ legal duty.

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That’s when Greenberg stepped in. In a deceptive and borderline unethical memo, the firm wrote that Hinkle’s order bound only a single clerk, the named defendant in the case, to a single gay couple, the named plaintiffs.* The judge’s ruling, Greenberg explained, had absolutely no effect on every other clerk in every other county. Thus, any clerk who dared to issue a marriage license on Jan. 6 would be violating Florida’s gay marriage ban—which, in the firm’s view, was still valid. And because this ban created criminal penalties for those who violate it, any clerk who granted same-sex marriage licenses on Jan. 6 could be subject to prosecution and jail time.

This, of course, is nonsense—and on New Year’s Day, Hinkle issued a new order lambasting Greenberg’s memo as the sloppy piece of duplicitous disruption that it is. “History,” Hinkle wrote, tartly invoking the days of massive resistance, “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.” Some clerks, Hinkle admitted, may choose to wait for a higher court to rule on the merits of Florida’s ban before issuing marriage licenses to gay couples. But “there should be no debate” that if a clerk chooses to follow Hinkle’s ruling—that is, chooses to obey the law—she won’t be sent to jail. Further, Hinkle noted, those clerks who choose to discriminate against gay couples should remember that they may well be sued. And if they lose, they’ll be required to pay their opponent’s attorney’s fees.

Hinkle’s order is a stinging rebuke to those clerks who would rather inflict their personal prejudices on gay couples than comply with a federal court order. But more than that, it’s a stunning embarrassment to Greenberg Traurig, a once-respectable firm that has now inexplicably and irrevocably tarnished its own reputation. Providing anti-gay legal advice is perfectly acceptable, if rather distasteful. But attempting to draft clerks into a futile campaign of civil disobedience by scaring them into breaking the law is borderline unethical. Greenberg’s willfully misleading memo reads like the opening act of Southern-style civil rights resistance. Let’s hope Hinkle’s new ruling will uproot this fruitless revolt before it has time to blossom into something truly dangerous. 

*Correction, Jan. 5, 2015: This article originally misidentified which parties were plaintiffs and which was the defendant.