After Florida officials' defiance, federal judge affirms gay marriage ban is unconstitutional

He instructs Florida to treat same-sex couples as equal in all aspects of the law.
Hillsborough County Clerk of the Circuit Court Pat Frank, right, marries Brenda Cuevas, left, and Shirley Winslow at the circuit court office in Tampa on Jan. 6, 2015, after a federal judge ruled that Florida's same-sex marriage ban was unconstitutional. SKIP O'ROURKE   |   Times (2015)
Hillsborough County Clerk of the Circuit Court Pat Frank, right, marries Brenda Cuevas, left, and Shirley Winslow at the circuit court office in Tampa on Jan. 6, 2015, after a federal judge ruled that Florida's same-sex marriage ban was unconstitutional.SKIP O'ROURKE | Times (2015)
Published March 31 2016
Updated April 1 2016

TALLAHASSEE — Although gay marriage has been legal in Florida for more than a year and the law nationwide since last summer, a U.S. District Court judge ruled definitively this week that Florida's ban on same-sex marriage is unconstitutional.

Judge Robert L. Hinkle said Gov. Rick Scott's administration and the state Legislature need to recognize that and also start treating same-sex couples the same as heterosexual couples in all aspects of law.

Hinkle wrote that he was compelled to grant summary judgment in a long-standing lawsuit challenging the constitutionality of Florida's same-sex marriage ban because state officials have shown little, if any, inclination to accept and follow last summer's U.S. Supreme Court ruling and the implications of it.

"After the United States Supreme Court issued (its ruling), one might have expected immediate, unequivocal acceptance," Hinkle wrote. "Not so for the State of Florida."

The state's reluctance has come specifically in the form of tangential issues affecting same-sex couples such as state employee benefits or birth and death certificates, in which spouses are listed but in which the state has refused to list same-sex spouses the same as heterosexual spouses.

The state — represented by Attorney General Pam Bondi's office — had argued the pending gay-marriage lawsuit was moot in light of the U.S. Supreme Court decision. But Hinkle said that because of the state's defiance, he couldn't agree and, instead, needed to explicitly clarify that same-sex couples have a right to equal treatment under the law.

"Given the state defendants' history of resistance to earlier orders, the breadth of state employment and vital-records requirements, and the state defendants' insistence that state provisions remain in force until explicitly struck down, it cannot be said that the state defendants have unambiguously terminated their illegal practices," Hinkle wrote in his 10-page summary judgment.

He declared provisions in Florida's Constitution and two state laws defining marriage as between a man and a woman as unconstitutional.

He further barred Florida's surgeon general — Dr. Celeste Philip holds the post in the interim after the Legislature failed to confirm Dr. John Armstrong earlier this month — and the secretary of the Department of Management Services, Chad Poppell, from taking any steps to continue enforcing Florida's provisions banning same-sex marriage.

Attorneys for the plaintiffs praised Hinkle's directness in his ruling.

"Today's decision decisively affirms the right of same-sex couples to equal treatment under the law," said Daniel Tilley, the ACLU of Florida's LGBT rights staff attorney. "This is a great decision that will strengthen Florida's families."

Bondi's office declined to comment.

Instead, her office referred a Times/Herald reporter to the Department of Health and DMS and also supplied a link to Bondi's statement in response to the U.S. Supreme Court decision last summer, in which Bondi said: "The United States Supreme Court has the final word on interpreting the Constitution, and the court has spoken."

DOH spokeswoman Mara Gambineri would not comment Thursday evening on Hinkle's decision or whether the DOH planned to change how it administers birth certificates to same-sex couples. She said only that "the department is currently reviewing Judge Hinkle's ruling."

In a separate order, Hinkle laid out the process by which the plaintiffs could request that the state pay for attorneys fees in the case. The figure is likely to be in the hundreds of thousands of dollars because the lawsuit — which is two combined cases — has dragged on for more than a decade.

The plaintiffs must first request the chance to get attorneys fees, and if Hinkle approves that, then they can request a specific amount, which the state could then be obligated to pay. That process is likely to take another two months or more to resolve.

Hinkle wrote that the Legislature's inaction to fix Florida's unconstitutional laws hasn't helped matters.

"Here the Florida Legislature has refused to budge; the challenged statutes remain on the books," Hinkle wrote. "That result is fully consistent with the defendants' approach to this case all along. There has been nothing voluntary about the defendants' change of tack."

Democrats filed two bills during the 2016 session seeking to fix Florida's laws: one would have removed the definition of marriage as between only a man and a woman, and another would have clarified that same-sex couples could be listed as parents on birth certificates.

The definition-of-marriage bill didn't get a hearing in either chamber of the Republican-led Legislature. The measure related to birth certificates got one favorable committee vote in the House but wasn't taken up in the Senate.

Spokesmen for outgoing House Speaker Steve Crisafulli, R-Merritt Island, and outgoing Senate President Andy Gardiner, R-Orlando, did not offer comment Thursday to questions about Hinkle's summary judgment and his criticism of the Legislature.

The state has the option to appeal Hinkle's decision to the 11th Circuit Court of Appeals, but Tilley said he hoped "the strong language that Judge Hinkle used makes this the end of the road."

Contact Kristen M. Clark at kclark@miamiherald.com Follow @ByKristenMClark.

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