Florida U.S. Judge Strikes Down Gay Marriage Ban

     TALLAHASSEE, Fla. (CN) – Striking down Florida’s gay marriage ban as unconstitutional, a federal judge noted that “gays and lesbians, like all other adults, may choose a life partner and dignify the relationship through marriage.”
     U. S. District Judge Robert Hinkle ruled Thursday on two consolidated cases challenging Florida’s refusal to allow same-sex marriages and to recognize legal gay marriages from other states and countries. The plaintiffs include nine same-sex couples married in other states and Canada; the surviving spouse of a same-sex marriage; an unmarried gay couple who wish to marry in Florida; and an organization supporting gay-marriage rights.
     They claimed Florida’s same-sex marriage ban discriminated against them based on sexual orientation and sex, and deprived them of access to retirement options, health care and disability coverage, and child-custody rights that heterosexual couples enjoy in Florida. Some of the plaintiffs also asserted violations of the First Amendment’s right of association, the establishment clause, and the supremacy clause.
     “The founders of this nation said in the preamble to the United States Constitution that a goal was to secure the blessings of liberty to themselves and their posterity,” Hinkle’s 33-page ruling states. “Liberty has come more slowly for some than for others. 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 barred enforcement of the challenged provisions, ordering the state to let same-sex couples marry and to recognize gay marriages performed elsewhere. The judge did, however, stay most of the injunction pending appeal, except for an order to amend the death certificate of one of the plaintiff’s late wife to show they were married at the time of her death.
     Arlene Goldberg of Fort Myers, whose wife, Carol Goldwasser, died March 13, had sought to correct her late wife’s death certificate to reflect their 2011 marriage in New York. Goldberg, who had been with Goldwasser for 47 years, is caring for her late wife’s elderly parents but could not collect Goldwasser’s Social Security because of the gay marriage ban, according to the ruling.
     All individual plaintiffs have standing to sue based on sufficient personal stake in challenging the ban, such as the denial of benefits available to opposite-sex couples and its financial consequences, according to the Aug. 21 ruling.
     In keeping with the U.S. Supreme Court’s 2013 decision in United States v. Windsor, which threw out a key portion of the 1996 federal Defense of Marriage Act, Hinkle ruled that the right to marry is fundamental, regardless of whom a person chooses to marry. Banning same-sex marriage violates the 14th Amendment as much as the interracial marriage ban did before the Supreme Court struck it down in 1967, the order states.
     The court shot down the state defendants’ argument that the right to marry someone of the same sex is not warranted the same protection as the right to marriage defined as the union between a man and a woman. Just as unconvincing was their argument that the critical feature of marriage is the capacity to procreate, according to the ruling.
     “Same-sex couples, like opposite-sex couples and single individuals, can adopt, but same-sex couples cannot procreate,” Hinkle wrote. “Neither can many opposite-sex couples. And many opposite-sex couples do not wish to procreate.
     “Florida has never conditioned marriage on the desire or capacity to procreate. Thus individuals who are medically unable to procreate can marry in Florida. If married elsewhere, their marriages are recognized in Florida. The same is true for individuals who are beyond child-bearing age. And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to procreate, or pass the age when they can do so, are allowed to remain married. In short, the notion that procreation is an essential element of a Florida marriage blinks reality. …
     “The undeniable truth is that the Florida ban on same-sex marriage stems entirely, or almost entirely, from moral disapproval of the practice.”
     Florida’s moral disapproval of same-sex marriage, standing alone, cannot sustain the ban, the judge concluded.
     “The institution of marriage survived when bans on interracial marriage were struck down, and the institution will survive when bans on same-sex marriage are struck down,” the ruling states. “Liberty, tolerance, and respect are not zero-sum concepts. 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. Tolerating views with which one disagrees is a hallmark of civilized society.”
     Hinkle dismissed Gov. Rick Scott and Attorney General Pam Bondi as defendants, noting it made no difference in determining the merits of the case. The plaintiffs may, however, pursue claims against the Florida surgeon general, the secretary of the Department of Management Services and the clerk of court for Washington County, the order states.
     Hinkle is the fifth judge in the state to rule against the same-sex marriage ban approved by voters in 2008, and the first federal judge to do so.
     According to the national group Freedom to Marry, LGBT advocates have had more than 30 victories in federal, state and appellate courts since June 2013, when the U.S. Supreme Court ruled in favor of Edith Windsor, a lesbian widow.
     “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,” Daniel Tilley, the ACLU of Florida’s staff attorney for LGBT rights, said in a statement. “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 ACLU of Florida filed one of the two consolidated lawsuits.
     A spokesman for the attorney general’s office said Bondi was reviewing the ruling and did not know whether she will appeal to the 11th Circuit, according to the Miami Herald.

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