A federal district court judge in Tallahassee on Thursday ruled Florida’s ban on same-sex marriage unconstitutional. It is the fifth court decision in the state finding against Florida’s ban, but the first federal-court decision, and the first that applies state-wide. Nevertheless, as in previous cases, the judge stayed the decision, granting time for this and other decisions to be appealed.
Judge Robert Hinkle likened the ban on same-sex marriage to racist laws that forbade interracial couples from marrying until 1967.
“Liberty has come more slowly for some than for others,” Hinkle wrote in his order. “It was 1967, nearly two centuries after the Constitution was adopted, before the Supreme Court struck down state laws prohibiting interracial marriage, thus protecting the liberty of individuals whose chosen life partner was of a different race. Now, nearly 50 years later, the arguments supporting the ban on interracial marriage seem an obvious pretext for racism; it must be hard for those who were not then of age to understand just how sincerely those views were held. When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination. Observers who are not now of age will wonder just how those views could have been held.”
Hinkle is a Florida State University graduate appointed to the federal bench by Bill Clinton in 1996.
Gov. Rick Scott’s administration opposes the legalization of gay marriage, and Attorney General Pam Bondi has vigorously fought legalization, arguing that all court decisions should be stayed pending a ruling by the United States Supreme Court. The high court, now in recess until October, has not yet taken up a case that would decide the issue. A little over a year ago, the Supreme Court, in a 5-4 ruling, declared the federal “Defense of Marriage Act” (sic.) unconstitutional. That law had effectively denied gay couples such things as survivor benefits through Social Security available to heterosexual couples, and gave states authority not to recognize same-sex couples who had married elsewhere.
By early August, 29 consecutive court decisions across the country had declared gay marriage ban unconstitutional, all drawing on two sources: Justice Anthony Kennedy’s decision in the Defense of Marriage decision, and the 14th Amendment declaring that no state shall “deny to any person the equal protection of the laws.” Florida becomes the 16th state in which a federal court has struck down a marriage ban as unconstitutional, according to the ACLU, which brought the Florida case to court.
“Liberty, tolerance, and respect are not zero-sum concepts,” Hinkle wrote. “Those who enter opposite-sex marriages are harmed not at all when others, including these plaintiffs, are given the liberty to choose their own life partners and are shown the respect that comes with formal marriage.”
The Florida case decided today is based on lawsuits filed by 22 plaintiffs, including nine same-sex couples lawfully married in New York, the District of Columbia, Iowa, Massachusetts, or Canada; the surviving spouse of a New York same-sex marriage; two individuals who have been in a same-sex relationship for 15 years, aren’t married but wish to marry in Florida; and SAVE, an organization asserting the rights of its members who lawfully entered same-sex marriages outside Florida. All the plaintiffs live in Florida.
James D. Brenner and Charles D. Jones are among the same-sex couples, according to the decision. Brenner has worked for the Florida Forest Service since 1981. Jones has worked for the Florida Department of Education since 2003. They were married in Canada in 2009. Brenner says the state’s refusal to recognize their marriage eliminates a retirement option that would provide for Jones after Brenner’s death. Juan del Hierro and Thomas Gantt, Jr., have been a couple for six years and were married in Washington, D.C., in 2010. They live in North Miami Beach and have an adopted 2-year-old son. Gantt taught for more than a decade in public schools but now works at a virtual school. If their marriage were recognized, Gantt would designate del Hierro as his pension beneficiary.
They still cannot have their marriage recognized, pending the stay in the case.
“We are thrilled that these loving and committed couples will soon have the same protections and security for their families that other married couples have,” stated Daniel Tilley, the ACLU of Florida’s staff attorney for lesbian, gay, bi-sexual and transgender rights. “Florida’s refusal to recognize their marriages serves no legitimate purpose and is hurtful to Florida families. We’re very pleased to see the ban held unconstitutional in such unequivocal terms so that all Florida families will soon finally have the same protections.”
The decision included one exception to the stay: the judge ordered that the death certificate of one of the plaintiffs be corrected to reflect that she had been married to her partner: Arlene Goldberg married Carol Goldwasser in New York in 2011. Goldwasser died in March 2014.
The couple had been together for 47 years. Ms. Goldwasser was the toll-facilities director for Lee County for 17 years. Goldberg is retired but works part time at a major retailer. The couple had been living with and taking care of Goldwasser’s elderly parents, but now Goldberg cares for them alone. Social-security benefits are Goldberg’s primary income. Florida’s refusal to recognize the marriage has precluded Goldberg from obtaining social-security survivor benefits. Goldberg says that for that reason only, she will have to sell her house, and Goldwasser’s parents are looking for another place to live.
“The correction is important to Ms. Goldberg,” the judge ruled. “There is little if any public interest on the other side of the scale. There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse’s death certificate. Indeed, the state’s refusal to let that happen is a poignant illustration of the controversy that brings us here.”
But the remaining couples must endure the “controversy” to satisfy the state’s opposition to same-sex marriage until a higher court rules.
Still, the ACLU and Equality Florida, the [pressure group supporting same-sex marriage in the state, welcomed the ruling.
“Florida put this discriminatory ban in place and Florida should end it,” Equality Florida said in a statement. “Our families have waited too long already. We call on Governor Scott to join us in urging the Florida Supreme Court to take up this issue immediately.”
SAVE Executive Director Tony Lima said: “SAVE is pleased as a plaintiff in the ACLU’s marriage recognition lawsuit to have received a favorable ruling in court today. While we are overjoyed that the judge erred on the side of fairness by ordering the state of Florida recognize the legal marriages of the plaintiffs, we will continue to make the case that it is Florida’s responsibility to recognize the legal marriages of all same-sex couples, and not only those named as plaintiffs in our suit. SAVE will continue to advocate for a pro-equality ruling as the court examines the case further in the weeks and months ahead.”