In a ruling late Friday, the U.S. Supreme Court said it will allow same-sex couples to begin marrying in Florida on January 6. But that doesn't mean that clerks will actually issue licenses.
A federal judge ruled in August that the state's ban on same-sex marriage is unconstitutional, and stayed his decision until early January. The state had asked the U.S. Supreme Court to extend that stay, but the justices have now declined. Ordinarily, emergency requests from Florida are heard by Justice Clarence Thomas, but he referred Florida's petition to the full court. According to Friday's decision, only Thomas and Justice Antonin Scalia were in favor of granting the state's request, and so it was denied.
Unfortunately, couples who attempt to obtain licenses January 6 may still be turned away. The Florida Association of Clerks and Comptrollers has warned its members that because the state's marriage ban remains on the books and because litigation is still ongoing, issuing licenses to gay and lesbian couples remains a criminal act in Florida. Clerks who issue licenses could face up to a year in jail, the group said.
It's hard to imagine that law enforcement officials would actually prosecute a clerk who decided to test that law. But will there be a clerk brave enough to stick his or her neck out? That remains unknown.
If a clerk did decide to issue a license, and if a prosecutor decided to then charge them with breaking the law, that clerk would likely be in a good legal position to defend their actions. But such a defense would probably be costly, so they would also need to be in a good financial position to defend themselves. That would require the support of national civil rights groups, like potentially Lambda Legal, the American Civil Liberties Union, or the Human Rights Campaign.
"Every day these couples and their families are denied the protections and benefits that come with legal marriage, they risk real and serious consequences," said HRC legal director Sarah Warbelow in a Friday statement. "We look forward to the day that all couples are able to have their relationships recognized as valid under the law."