Yvette and Helena are among the thousands of same-sex couples who are ready for the freedom to marry in Florida. Photo: Equality Florida/Freedom to Marry

Yvette and Helena are among the thousands of same-sex couples who are ready for the freedom to marry in Florida. Photo: Equality Florida/Freedom to Marry

Marriage equality advocates are preparing for a showdown with Florida court clerks when a stay expires next month of a federal judge’s ruling striking down the state’s same-sex marriage ban.

Last week, the U.S. Supreme Court refused to extend the stay, paving the way for same-sex marriages to begin in Florida on January 6.

But a memo issued earlier last week to clerks from the legal counsel to the Florida Association of Clerks and Comptrollers has created confusion by saying it believe’s the August ruling by U.S. District Judge Robert Hinkle that declared the state ban unconstitutional, only applies to one Panhandle county where the clerk was named as a defendant.

That memo, from the Greenberg Traurig law firm, has been blasted by state and national legal experts and includes an exaggerated warning to clerks that they could be fined or prosecuted if they issue marriage licenses to same-sex couples.

Clerks in at least 12 counties say they will not issue marriage licenses to same-sex couples on January 6. Check the list →

Legal experts who have worked to secure marriage in other states say the threat in the Greenberg Traurig memo is a strained interpretation that ignores legal precedent and common sense.

“A law firm memo does not override a federal judge’s order and the actions of the 11th Circuit and the U.S. Supreme Court,” said Nadine Smith, executive director of Equality Florida, a statewide LGBT advocacy group.

Shannon Minter, Legal Director for the National Center for Lesbian Rights (NCLR), advised that “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.”

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The NCLR successfully represented a group of plaintiffs in a separate state challenge to the Florida ban.

“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,” said Minter.

Even some State Attorneys have begun publicly dismissing the idea that a clerk would face charges for issuing marriage licenses to same-sex couples.