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Topics In the News
Federal Judge Invalidates Florida's Same-Sex Marriage Ban
Posted by: Claude J. Summers on 08/21/14
Last updated on: 08/21/14
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On August 21, 2014, U.S. District Judge Robert L. Hinkle ruled, in a decision concerning two consolidated cases, Brenner v. Scott and Grimsley v. Scott, that Florida's ban on same-sex marriages and on the recognition of same-sex marriages performed elsewhere is unconstitutional. Three state judges had previously declared that Florida's ban is unconstitutional, but their rulings applied only to the counties from which they arose. Judge Hinkle's ruling applies state-wide. However, as has become customary, he stayed the ruling with an exception for a widow who had petitioned that her late wife's death certificate be corrected to list her as the surviving spouse.

The cases that Judge Hinkle consolidated were brought on behalf of 22 couples who had either been denied the right to marry or whose marriages elsewhere had been refused recognition by the state of Florida.

Early in his opinion Judge Hinkle declared that "Now, nearly 50 years [after the Supreme Court declared that restrictions on interracial marriage were unconstitutional], 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."

Before concluding that Florida's ban on same-sex marriage violates the Due Process and Equal Protection clauses of the United States Constitution, Judge Hinkle demonstrates how insufficient are the state's proffered justifications for the ban.

He particularly singles out for scorn the argument that marriage should be reserved for opposite-sex couples because same-sex couples cannot procreate. "[D]efending the ban on same-sex marriage on the ground that the capacity to procreate is the essence of marriage," Judge Hinkle writes, "is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that, in another context, might be 'accompanied by a suspicion of mendacity.'"

He adds, "The undeniable truth is that the Florida ban on same-sex marriage stems entirely, or almost entirely, from moral disapproval of the practice."

Since Supreme Court rulings have definitively established that moral disapproval, standing alone, cannot justify a violation of the the Fourteenth Amendment, Judge Hinkle says, "the defendants must fall back on make-weight arguments that do not withstand analysis."

In a moving conclusion that circles back to his opening analogy between interracial marriage and same-sex marriage, Judge Hinkle writes: "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."

Following recent practice, Judge Hinkle issued an injunction against enforcement of Florida's marriage ban and then stayed the injunction pending further review by appellate courts.

However, he made an exception to the stay in regard to Arline Goldberg, one of the plaintiffs. Ms. Goldberg married Carol Goldwasser, her partner of 47 years in New York in 2011. When Ms. Goldwasser died in March 2014, the state of Florida refused to record on her death certificate that she was survived by her spouse Ms. Goldberg. Instead, the death certificate says untruthfully and cruelly that Ms. Goldwasser was never married and has no surviving spouse.

In addition to insulting the couple, Florida's refusal to recognize their marriage means that Ms. Goldberg has been unable to obtain social security survivor benefits.

Judge Hinkle ordered Florida to correct Ms. Goldwasser's death certificate. He wrote, "The correction is important to Ms. Goldberg. 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."

Judge Hinkle's decision may be found here.

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