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Thursday, Oct 30, 2014
AP Florida

U.S. judge strikes down Florida gay marriage ban


Published:   |   Updated: August 22, 2014 at 06:52 AM

TALLAHASSEE — Saying that “liberty has come more slowly for some than for others,” a federal judge in Florida ruled Thursday that the state's gay marriage ban is unconstitutional.

U.S. District Judge Robert Hinkle joined state judges in four Florida counties who also ruled in favor of same-sex couples who want to marry. His decision also applies to the recognition of gay marriages performed in other states.

But Hinkle, who sits in Tallahassee, also issued a stay that delays any effect to his ruling, allowing time for appeals. That means gay Floridians cannot immediately file for marriage licenses in the state based on his decision.

Florida Attorney General Pam Bondi had appealed earlier rulings against the ban in Broward, Miami-Dade, Monroe and Palm Beach counties. She said earlier this month that the U.S. Supreme Court should have the final word.

Hinkle held that marriage is a “fundamental right” under the 14th Amendment's due process and equal protection provisions, and Florida's ban violates that right for same-sex couples.

In his 33-page ruling, he compared the ban to laws once prohibiting interracial marriages. The U.S. Supreme Court, in 1967's Loving v. Virginia decision, struck down state laws that prevented couples of different skin color from wedding.

“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,” Hinkle wrote.

“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,” he added. “Observers who are not now of age will wonder just how those views could have been held.”

The American Civil Liberties Union of Florida, which represented eight of the couples who are plaintiffs, said in a statement that “Florida's refusal to recognize their marriages serves no legitimate purpose and is hurtful to Florida families.”

“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,” said Daniel Tilley, the group's staff attorney for LGBT rights.

Plaintiff Arlene Goldberg of Fort Myers lost her wife and partner of 47 years in March when Carol Goldwasser died following a lifelong illness.

Although the two got married in New York, their marriage was not recognized by Florida, preventing Goldberg from making funeral arrangements for Goldwasser.

“When she passed away and I saw what we all had to go through even though we were married, it just wasn't right,” Goldberg said.

“It feels so good to make a difference,” she said of Thursday's ruling. “I think that's what we're here for.”

Hinkle specifically exempted Goldberg from his stay, saying Goldwasser's death certificate should be changed to show Goldberg as her spouse.

That allows Goldberg to receive Social Security survivor benefits, without which she was afraid she would lose her house.

“There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse's death certificate.” Hinkle wrote. “Indeed, the state's refusal to let that happen is a poignant illustration of the controversy that brings us here.”

Equality Florida, the St. Petersburg-based lesbian, gay, bisexual and transgender advocacy group, tallied 38 rulings against state gay marriage bans since last year's U.S. Supreme Court decision that struck down the federal Defense of Marriage Act's interpretation of marriage to mean only heterosexual unions.

“Florida put this discriminatory ban in place and Florida should end it,” Nadine Smith, Equality Florida's CEO, said in a statement. “Our families have waited too long already.”

Voters approved adding the ban as an amendment to Florida's constitution in 2008. It passed with nearly 62 percent approval.

“Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized,” the amendment says.

The initiative was backed by John Stemberger, president and general counsel of the conservative Florida Family Policy Council.

“People ask me, are you on the wrong side of history? To me, this issue will never be on the wrong side of history because it's rooted in the human experience,” Stemberger told the News Service of Florida on Thursday night.

“A little boy who longs to have a father in the inner city – that will never be on the wrong side of history,” he said. “The little girl who has two dads and doesn't have a mom and she wants someone to guide her through the changes that a woman's body goes through – that's never going to be on the wrong side of history. And the beauty of how a man and woman come together and life is born, that's never going to be on the wrong side of history.”

Staff writer Jose Patino Girona and reporter Jessica Lipscomb of the Naples Daily News contributed to this report.

jrosica@tampatrib.com

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