Florida gay-marriage proponents are asking a federal judge to lift his own stay and allow same-sex unions in the Sunshine State, following a Supreme Court announcement Monday that clears the way for immediate expansion of marriage rights throughout the United States.
“It’s about time to suck it up and recognize the historical inevitability of equality,” ACLU of Florida Executive Director Howard Simon told the Miami Herald on Monday in a statement aimed directly at Florida Attorney General Pam Bondi, whose office has unsuccessfully defended the state’s gay marriage ban in at least four circuit and federal court cases.
“My office, this just came out less than three hours ago, will be reviewing that, see what happens next, there are a lot of other cases in the pipeline,” Bondi, the Republican incumbent said Monday afternoon during a St. Petersburg election debate with Democratic challenger George Sheldon. “What I've always said is that the court must decide this — we need finality from the juidiciary. I think we can all agree, we're members of the executive branch, we're not the Supreme Court.”
Asked about dropping appeals in Florida, Bondi responded: “There are other cases in other states. The sixth circuit is still out there pending so we're going to see what they do in the sixth circuit we're going to be looking at those other cases, we're going to be reviewing everything in Florida to see what to do next. And again, it just came out less than three hours ago, but this is a tremendous win for the plaintiffs in this case.”
“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,” Hinkle wrote in his opinion. “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.”
Bondi’s office soon appealed Hinkle’s ruling to the 11th Circuit Court of Appeals in Atlanta, where it awaits being heard.
‘Today we will be submitting papers to Judge Hinkle to lift the stay,” said Simon, adding that Hinkle said he would keep in place “until the U.S. Supreme Court resolves the pending applications, at that time, from Utah, Oklahoma and Virginia.”
On Monday, the Supreme Court declined to hear appeals by those three states, plus Wisconsin and Indiana. Couples in six other states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court's review.
National gay marriage advocates and opponents quickly opined on the high court’s announcement:
▪ “Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country. The Court’s letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60% of the American people,” said Evan Wolfson, president of Freedom to Marry. “But we are one country, with one Constitution, and the Court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places. As waves of freedom to marry litigation continue to surge, we will continue to press the urgency and make the case that America – all of America -- is ready for the freedom to marry, and the Supreme Court should finish the job.”
▪ “Unfortunately, by failing to take up these marriage cases, the High Court will allow rogue lower court judges who have ignored history and true legal precedent to silence the elected representatives of the people and the voice of the people themselves by overturning state provisions on marriage,” said Tony Perkins of the conservative Family Research Council. “Even more alarming, lower court judges are undermining our form of government and the rights and freedoms of citizens to govern themselves. This judicially led effort to force same sex 'marriage' on people will have negative consequences for our Republic, not only as it relates to natural marriage but also undermining the rule of and respect for law.”
▪ “We are ecstatic to hear that same-sex couples will soon be able to marry in 30 states, the District of Columbia, and 10 Native American jurisdictions. And while we hoped that the U.S. Supreme Court would decide on the issue of marriage for all 50 states, we are resolute in our work to secure justice, fairness, and equality for all,” said Rea Carey, executive director of the National Gay and Lesbian Task Force. “For millions of hardworking LGBTQ people and our families, we still live in a society that denies us explicit nondiscrimination protections, voting rights, a pathway to citizenship, access to life-saving health care and reproductive rights, and many other basic and fundamental rights.”
▪ “Given what the Supreme Court has allowed to happen, the only alternative to letting unelected judges impose their view of marriage on Americans across the country is to pursue a process that will allow the American people to decide for themselves what is marriage,” said Brian Brown of National Organization for Marriage. “It is critical not only to marriage but to the republican form of government in this country to amend the Constitution to reaffirm the meaning of marriage. We therefore call on the U.S. Congress to move forward immediately to send a federal marriage amendment to the states for ratification.”
Within hours of the announcement, the political situation changed rapidly in the affected states.
▪ Wisconsin Gov. Scott Walker, a Republican, said the fight against same-sex marriage "is over" in Wisconsin. "With the Supreme Court's announcement today, it is clear that the position of the court of appeals at the federal level is the law of the land and we're going to go forward enacting it."
▪ Virginia Attorney General Mark Herring, a Democrat, said marriage licenses could start to be issued to same-sex couples as early as Monday afternoon.
▪ In North Carolina, lawyers for same-sex couples said they planned to ask a judge Monday to overturn the state's gay marriage ban.
▪ In Oklahoma, the clerk in the largest county said he would await a formal order from the Denver-based 10th U.S. Circuit Court of Appeals before he begins issuing marriage licenses to same-sex couples. That court had placed its ruling striking down the state ban on hold.
“Today is a momentous day in American history, one of the surest signs yet that the Supreme Court now recognizes what many of us have known to be true for years: denying same-sex couples the ability to marry is discrimination before the law, pure and simple,” said U.S. Rep. Debbie Wasserman Shultz, D-Weston, who is also chairwoman of the Democratic National Committee. “In Florida, the groundswell had already begun with South Florida courts taking the lead in striking down the state’s ban. Love is love, and it is now only a matter of when, not if, same-sex marriage bans are struck down here at home and across the rest of the United States.”
U.S. Rep. Ileana Ros-Lehtinen, R-Miami, one of the strongest pro-LGBT voices in the GOP, said: “Today’s decision by the Supreme Court allowing various state rulings permitting same-sex marriage to stand is a welcome one. Everyone, regardless of sexual orientation or gender identity, should be able to marry the person of their choosing and I look forward to the day when every American will enjoy that right.”
Florida gay marriage proponents believe Bondi and Gov. Rick Scott, both Republicans up for reelection in November, are now on the political hot seat.
Bondi now has several choices, according to the ACLU’s Simon:
“She can fight the lifting of the stay by Hinkle. If he does lift the stay, she can run to Atlanta to ask the 11th Circuit to reinstantiate the stay. Or three she can suck it up and be an adult and say to her base and supporters, ‘We fought the good fight. I performed my duty to defend Florida’s law, but the nation's highest court has told me that pursuing this is fruitless,” Simon said. “Of three alternatives, the one she should do is the third.”
Bondi has repeatedly said Florida should stop fighting the gay-marriage battle at the state level and wait until the U.S. Supreme Court settles the issue nationally, once and for all.
“Neither this Court nor the Florida Supreme Court can decide this federal issue with finality,” Bondi wrote in August to the state’s 3rd District Court of Appeal, after her office appealed losing gay marriage decisions in Monroe, Miami-Dade, Broward and Palm Beach circuit courts. (The Broward ruling later was vacated on a legal technicality.) “The United States Supreme Court, however, ‘has the final word on the United States Constitution.’”
Miami Beach attorney Elizabeth Schwartz, who is helping represent six same-sex couples in the Miami-Dade right-to-marry case, said it’s time for Bondi to change her legal strategy.
“Attorney General Bondi needs to come up with a new argument,” Schwartz said after Monday’s announcement. “She wanted to wait for the Supreme Court to resolve this issue, but, alas, if she wins this election, she is going to have to focus on defending this indefensible ban — or doing the right thing and not allowing discrimination to continue to be permitted in the state of Florida. She can’t dodge the issue anymore by waiting for the Supreme Court to make a finding.”
The Tampa Bay Times and Associated Press contributed to this story.