BY STEVE ROTHAUS
In the first decision on same-sex marriage with statewide impact, a federal judge ruled Thursday that Florida's gay-marriage ban is unconstitutional, ordering the state to allow the marriage of same-sex couples and to recognize legal marriages performed elsewhere.
“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,” wrote U.S District Judge Robert L. Hinkle of Tallahassee. “Observers who are not now of age will wonder just how those views could have been held.”
Hinkle, who stayed most of the effects of his ruling pending appeal, added: “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. 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.”
The judge’s ruling comes after 22 individuals, including nine married couples, sued Florida to recognize their marriages or grant them marriage licenses. Plaintiffs in the case include eight same-sex couples from throughout Florida and the LGBT-rights group SAVE, represented by the ACLU of Florida.
“We are overjoyed that the judge ruled on the side of fairness by ordering the state of Florida recognize the legal marriages of the plaintiffs,” SAVE Executive Director Tony Lima said in a statement.
Defendants in the case include Gov. Rick Scott and Attorney General Pam Bondi.
Scott “respects the many views Floridians have on this issue,” said Greg Blair, spokesman for the governor’s reelection campaign. “He believes in traditional marriage, consistent with the constitutional amendment passed by voters in 2008. There are several cases going through the court system and the governor respects that process.”
Bondi spokesman Whitney Ray declined to say whether the attorney general’s office will take the case to the U.S. 11th Circuit Court of Appeals in Atlanta. “We’re reviewing the ruling,” he said.
Hinkle wrote that the state presented no good argument for defending the law: “The undeniable truth is that the Florida ban on same-sex marriage stems entirely, or almost entirely, from moral disapproval of the practice.”
The judge also wrote he didn’t buy Bondi’s defense that a “critical feature of marriage is the capacity to procreate.”
“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.”
Said attorney Stephen Rosenthal of Podhurst Orseck in Miami, who represents the eight couples in the ACLU case: “What that means, if you read what he’s saying is that, ‘This is a bogus defense.’”
Bondi’s defense motions in this case led to scrutiny of her own marital history. She has been divorced twice and has no children.
The Florida Conference of Catholic Bishops on Thursday supported Bondi’s procreation defense: “Only the union of a man and a woman in and of itself can bring forth children and thus is the very origin of society. With its unique beauty and goodness revealed, the public has a worthy interest in protecting this institution in law as a means to ensure humanity is both nurtured and strengthened.”
The conservative Family Research Council in Washington blasted Hinkle’s ruling. “A radical departure from natural law and human history, this Florida judge has further undermined the legitimacy of the courts in the eyes of the American people. These liberal activist judges may want to take America over the cultural cliff, but don't be surprised when more and more Americans refuse to follow,” FRC Senior Fellow Chris Gacek said in a statement.
In March, eight same-sex couples who married elsewhere in the United States sued Florida to recognize their unions: Sloan Grimsley and Joyce Albu of Palm Beach Gardens; Lindsay Myers and Sarah Humlie of Pensacola; Chuck Hunziger and Bob Collier of Broward; Juan Del Hierro and Thomas Gantt Jr. of Miami; Christian Ulvert and Carlos Andrade of Miami; Richard Milstein and Eric Hankin of Miami; Robert Loupo and John Fitzgerald of Miami, and Denise Hueso and Sandra Jean Newson of Miami.
Del Hierro said he and Gantt met in 2008 as volunteers fighting the effort to ban gay marriage in Florida’s Constitution. Now, they have a son together, Lucas, age 21 months.
“It was volunteering for Amendment 2 that really solidified our relationship,” Del Hierro said. “I remember saying it might take us 20 years to undo the damage it did. To be here six years later, with our family, with our son Lucas, is surreal. Not only to do this for our son, but for our community.”
On April 10, the ACLU amended its complaint by adding another plaintiff: Arlene Goldberg of Fort Myers, whose wife, Carol Goldwasser, died March 13. Goldberg and Goldwasser had been partners for 47 years. They moved from the Bronx to Florida in 1989 and married in New York in October 2011.
The ACLU suit eventually was consolidated with a similar federal case involving two couples in North Florida, one already married in Canada and the other wanting to wed.
“It’s the first federal decision in Florida. When the stay is lifted, it will have statewide impact,” said Howard Simon, executive director of the ACLU of Florida. “What it will mean, when the stay is ultimately lifted, is that there families will be protected and strengthened. They'll start getting health insurance, pension benefits. They could protect their families with survivors benefits. These are the dramatic, practical ways that this victory will ultimately help families in Florida.”
The gay-marriage battle is being waged across the nation. According to the national group Freedom to Marry, LGBT advocates have won more than 30 times in federal, state and appellate courts since June 2013, when the U.S. Supreme Court ruled in favor of Edith Windsor, a lesbian widow, and threw out a key portion of the 1996 Defense of Marriage Act.
Since mid-July there have been five rulings in Florida declaring the state’s gay-marriage ban unconstitutional. The previous four rulings were in circuit courts throughout South Florida.
On July 17, Monroe Chief Circuit Judge Luis Garcia ruled that Aaron Huntsman and William Lee Jones of Key West could marry. Eight days later, Miami-Dade Circuit Judge Sarah Zabel ruled six same-sex couples in South Florida also had the right to marry. Those decisions are valid only in the judges’ respective counties, and both rulings have been put on hold pending appeals by Attorney General Pam Bondi.
On Aug. 4, Broward Circuit Judge Dale Cohen ruled Florida must recognize and then dissolve the Vermont civil union of Heather Brassner, a lesbian whose partner left her four years ago. The following day, Palm Beach County Circuit Judge Diana Lewis ordered W. Jason Simpson should be personal representative in the estate of his husband, Frank Bangor, who died March 14. The two men, together 37 years, were married Oct. 23, 2013, in Delaware.
Hinkle’s stay covered all aspects of the federal case except one: The judge ordered Goldwasser’s death certificate be amended to show she was a married woman, not single at the time she died.
“The defendant Florida Surgeon General must issue a corrected death certificate for Carol Goldwasser showing that at the time of her death she was married to Arlene Goldberg,” Hinkle wrote.
“Isn’t that fabulous? I’m so excited,” Goldberg said Thursday. “It confirms that they actually believe we were a couple. Married. We were together for 47 years and married for three in New York.”
Goldberg is caring for her late wife’s elderly parents. Because Florida hasn’t recognized her marriage to Goldwasser, Goldberg is unable to collect her late wife’s Social Security.
Bondi has until about Sept. 22 to appeal the case or the ruling takes effect, allowing Goldberg to become eligible to collect Goldwasser’s Social Security.
“Pam Bondi would have to go the 11th Circuit to deny survivor benefits to a woman who has been [with] her spouse for 47 years, who recently died, and would be less able to take care of her spouse’s parents,” Simon said. “That would be heartless.”
Kathleen McGrory of the Herald/Times Tallahassee bureau contributed to this report.