Judge rips Florida’s failure to give gay marriage ‘immediate, unequivocal acceptance’
In a final
judgment censuring state officials for not accepting legal redefinition of
marriage in the state, a federal judge declared Florida’s voter-approved
marriage protection law unconstitutional last week.
U.S. District Judge Robert Hinkle criticized Florida state
officials’ failure to act in doing away with the Florida marriage law once he’d
overturned it and lambasted them “for a history of resistance” against
homosexual “marriage.”
After the Supreme Court Obergefell v. Hodges decision "one
might have expected immediate, unequivocal acceptance," Hinkle wrote in
his 10-page summary judgment order Thursday. "Not so for the state of
Florida."
Same-sex partners Jim Brenner and Chuck Jones were first to sue
over the marriage law, later asking another same-sex couple, Stephen Schlairat
and Ozzie Russ, to join the lawsuit. The American Civil Liberties Union (ACLU)
then filed a challenge as well for eight couples and other plaintiffs, and the
cases were consolidated.
Approved by Florida voters in 2008, Hinkle had
struck the marriage protection law down in August 2014, his decision going into effect
in January 2015.
State officials’ handling of birth certificates for children of
same-sex couples was also part of what elicited Hinkle’s indignation in this
most recent ruling.
An advocacy group and two female couples had sued the state to
compel the Department of Health to list both “spouses” on birth certificates
for children born into homosexual “marriages,” however Health Department
officials maintain they cannot list both same-sex parents because state law
mandates the names of the mother and the father be listed on the documents.
“The answer should be easy," Hinkle wrote. "The
statutory reference to 'husband' cannot prevent equal treatment of a same-sex
spouse,” saying there are circumstances with opposite sex couples where a
non-biological parent is listed.
Hinkle’s judgment further prohibited Florida’s surgeon general
and the secretary of the Department of Management Services from taking any
action to continue enforcing Florida’s marriage protection law.
Hinkle also criticized the state’s lawmakers for not taking up
the birth certificate issue and for not overturning the marriage law during the
recently ended legislative session.
"Here the Florida Legislature has refused to budge; the
challenged statutes remain on the books,” he said. “That result is fully
consistent with the defendants' approach to this case all along. There has been
nothing voluntary about the defendants' change of tack.”
Democrats had filed two bills during the session to support
homosexual “marriage” in Florida law, one to remove the definition of marriage
as only between a man and a woman, and the other to spell out that same-sex
couples could be listed as parents on birth certificates.
The bill redefining marriage failed to get a hearing in either
chamber of the Republican-led legislature, and the birth certificate bill was
not taken up by the Senate after garnering one favorable committee vote in the
House.
Florida Attorney General Pam Bondi's office had argued that the
case challenging Florida’s marriage protection law was essentially moot because
of the Obergefell v. Hodges ruling.
"There is no need for anything further from this court,''
her office said in August 2015. "The United States Supreme Court has held
that states must recognize same-sex marriage, and state officials will comply
with the Supreme Court's decision."
However Hinkle countered in his summary judgment last week that
a case only becomes moot “if subsequent events made it absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to
recur."
"Given the state defendants' history of resistance to
earlier orders, the breadth of state employment and vital-records requirements,
and the state defendants' insistence that state provisions remain in force
until explicitly struck down, it cannot be said that the state defendants have
unambiguously terminated their illegal practices,” he wrote. “That the Legislature
chose not to pass legislation to bring Florida law into compliance does not
help the defendants."
On the day Hinkle struck down the state’s marriage protection
law in 2014, Bondi vowed to continue
defending the law, saying it was part of the state constitution she was sworn to
uphold.
Her office’s current position that no further defense of
homosexual “marriage” was necessary in the wake of the Obergefell decision
contrasts with that of numerous of her Democrat counterparts in other states,
who took U.S. Attorney General Eric Holder up on his February 2014 green light
for the nation’s attorneys general to ignore state bans on homosexual “marriage” more than a year
before last June’s Supreme Court ruling redefining marriage.
Those then refusing to uphold their states’ marriage laws, all
Democrats, included Virginia’s Mark
Herring, Oregon’s Ellen Rosenblum, New
Mexico’s Gary King and Pennsylvania’s Kathleen
Kane.
Two Democrat attorneys general, Arkansas’ Dustin
McDaniel and North
Carolina’s Roy Cooper, said they would defend their state marriage laws in
spite of their personal support for same-sex “marriage.”
Bondi’s office declined to comment on Hinkle’s ruling, but the
ACLU of Florida’s LGBT rights staff attorney praised the judgment.
“Today’s decision decisively affirms the right of same-sex
couples to equal treatment under the law,” Daniel Tilley said,. “This is a
great decision that will strengthen Florida’s families.”
The state could appeal Hinkle’s ruling to the 11th Circuit Court
of Appeals, nonetheless Tilley stated he hoped “the strong language that Judge
Hinkle used makes this the end of the road.”
